



















































Class 

Book 


3Xm$ 


6 (s XL 



« 











































! 


56th Congress, ) HOUSE OF REPRESENTATIVES, j Rep’t 85, 
1st Session. j j Part 1. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH, 


January 20, 1900.—Referred to the House Calendar and ordered to be printed. 


M.. $ . 

Mr. Tayler of Ohio, from the A Special Committee on the case of 
Brigham H. Roberts, submitted the following 

Q 4 

REPORT. 

[To accompany H. Res. 107.] 


Mr. Tayler, of Ohio, from the Special Committee on the case of 
Brigham H. Roberts, Representative-eject from the State of Utah, 
presented the following 

REPORT. 


Your committee, appointed December 5, 1899, in pursuance of the 
following resolution— 

Whereas it is charged that Brigham H. Roberts, a Representative-elect to the 
Fifty-sixth Congress from the State of Utah, is ineligible to a seat in the House of 
Representatives; and 

Whereas such charge is made through a member of this House, on his responsi¬ 
bility as such member and on the basis, as he asserts, of public records, affidavits, 
and papers evidencing such ineligibility : 

Resolved, That the question of the prima facie right of Brigham H. Roberts to be 
sworn in as a Representative from the State of Utah in the Fifty-sixth Congress, as 
well as of his final right to a seat therein as such Representative, be referred to a 
special committee of nine members of the House, to be appointed by the Speaker; 
and until such committee shall report upon and the House decide such question and 
right the said Brigham H. Roberts shall not be sworn in or be permitted to occupy a 
seat in this House; and said committee shall have power to send for persons and 
papers and examine witnesses on oath in relation to the subject-matter of this 
resolution— 

submit the following report: 

The committee met shortly after its appointment, and in Mr. Roberts’s 
presence discussed the plan and scope of its inquiry. Mr. Roberts 
submitted certain motions and supported them by argument, question¬ 
ing the jurisdiction of the committee and its right to report against 
his prima facie right to a seat in the House of Representatives. The 
determination of these questions was postponed by the committee, to 
be taken up in the general consideration of the case. 

Subsequently certain witnesses appeared before the committee and 
were examined under oath, in the presence of Mr. Roberts and by 
him cross-examined, relating to the charge that he was a polygamist. 
This testimony has been printed and is at the disposal of the members 
of the House. 

The committee fully heard Mr. Roberts and gave him opportunity 
to testify if he so desired, which he declared he did not wish to do, 










2 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


and upon the testimony adduced before it, unanimously agrees upon 
the following 

FINDING OF FACTS. 

We find that Brigham H. Roberts was elected as a Representative to 
the Fifty-sixth Congress from the State of Utah and was at the date of 
his election above the age of 25 years; that he had been for more than 
seven years a naturalized citizen of the United States and was an inhabitant 
of the State of Utah. 

We further find that about 1878 he married Louisa Smith, his first and 
lawful wife, with whom he has ever since lived as such, and who since 
their marriage has borne him six children. 

That about 1885 he married as his plural wife Celia Dibble, with whom 
he has ever since lived as such, and who since such marriage has borne 
him six children, of whom the last were twins, born August 11, 1897. 

That some years after his said marriage to Celia Dibble he contracted 
another plural marriage with Margaret C. Shipp, with whom he has ever 
since lived in the habit and repute of marriage. Your committee is 
unable to fix the exact date of this marriage. It does not appear that he 
held her out as his wife before January, 1897, or that she before that date 
held him out as her husband, or that before that date they were reputed 
to be husband and wife. 

That these facts were generally known in Utah, publicly charged against 
him during his campaign for election, and were not denied by him. 

That the testimony bearing on these facts was taken in the presence of 
Mr. Roberts, and that he fully cross-examined the witnesses, but declined 
to place himself upon the witness stand. 

The committee is unanimous in its belief that Mr. Roberts ought 
not to remain a member of the House of Representatives. A majority 
are of the opinion that he ought not to be permitted to become a mem¬ 
ber; that the House has the right to exclude him. A minority are of 
the opinion that the proper course of procedure is to permit him to 
be sworn in and then expel him by a two-thirds vote under the consti¬ 
tutional provision providing for expulsion. 

Your committee desire to assert with the utmost positiveness at this 
point that not only is the proposition of expulsion as applied to this 
case against precedent, but that exclusion is entirely in accord with 
principle, authority, and legislative precedent, and not antagonistic to 
any legislative action which the House of Representatives has ever 
taken. 

For convenience we present herewith, before proceeding to the 
extended argument in support of the committee’s resolution, the 
following: 

SUMMARY. 

Upon the facts stated, the majority of the committee assert that the 
claimant ought not to be permitted to take a seat in the House of 
Representatives, and that the seat to which he was elected ought to be 
declared vacant. 

The minority, on the other hand, assert that he ought to be sworn 
in in order that if happily two-thirds vote therefor he may be 
expelled. 

Three distinct grounds of disqualification are asserted against 
Roberts. 


3 








CASE OE BRIGHAM H. ROBERTS, OF UTAH. 

I. By reason of his violation of the Edmunds law. 

II. B} t reason of his notorious and defiant violation of the law of 
the land, of the decisions of the Supreme Court, and of the proclama¬ 
tions of the Presidents, holding himself above the law and not 
amenable to it. 

No government could possibly exist in the face of such practices. 
He is in open war against the laws and institutions of the country 
whose Congress he seeks to enter. Such an idea is intolerable. It is 
upon the principle asserted in this ground that all cases of exclusion 
have been based. 

III. His election as Representative is an explicit and offensive vio¬ 
lation of the understanding by which Utah was admitted as a State. 


THE PROPOSITION OF EXCLUSION. 

The objection is made to the refusal to admit Roberts that the Con¬ 
stitution excludes the idea that any objection can be made to his coming 
in if he is 25 j r ears of age, has been seven years a citizen of the United 
States, and was an inhabitant of Utah when elected, no matter how 
odious or treasonable or criminal may have been his life and practices. 

To this we reply: 

1. That the language of the constitutional provision, the history of 
its framing in the constitutional convention, and its context clearly 
show that it can not be construed to prevent disqualification for crime. 

2. That the overwhelming authority of text-book writers on the 
Constitution is to the effect that such disqualification may be imposed 
by the House, and no commentator on the Constitution specifically 
denies it. Especial reference is made to the works of Cushing, 
Pomeroy, Throop, Burgess, and Miller. 

3. The courts of several of the States, in construing analagous pro¬ 
visions, have with practical unanimity declared against such narrow 
construction of such constitutional provisions. 

4. The House of Representatives has never denied that it had the 
right to exclude a member-elect, even when he had the three constitu¬ 
tional requirements. 

5. In many instances it has distinctly asserted its right so to do in 
cases of disloyalty and crime. 

6. It passed in 1862 the test-oath act, which imposed a real and 
substantial disqualification for membership in Congress^ disqualifying 
hundreds of thousands of American citizens. This law remained in 
force for twenty years, and thousands of members of Congress were 
compelled to take the oath it required. 

7. The House in 1869 adopted a general rule of order, providing 
that no person should be sworn in as a member against whom the 
objection was made that he was not entitled to take the test oath, and 
if upon investigation such fact appeared, he was to be permanently 
debarred from entrance. 


THE PROPOSITION OF EXPULSION. 

The interesting proposition is made that the claimant be sworn in 
and then turned out. Upon the theory that the purpose is to perma¬ 
nently part company with Mr. Roberts, this is a dubious proceeding. 
Such action requires the vote of two-thirds of the members. We ask 


4 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


if such a vote is possible or right, in view of the following observa¬ 
tions. 

The expulsion clause of the Constitution is as follows: 

Each House may determine the rules of its proceedings, punish its members for 
disorderly behavior, and, with the concurrence of two-thirds, expel a member. 

No lawyer can read that provision without raising in his own mind 
the question whether the House has any power to expel, except for 
some cause relating to the context? the ablest lawyers, from the 
beginning of the Republic, have so insisted, and their reasoning has 
been so cogent that these propositions are established, namely: 

1. Neither House of Congress has ever expelled a member for acts 
unrelated to him as a member or inconsistent with his public trust and 
duty as such. 

2. Both Houses have many times refused to expel where the guilt 
of the member was apparent; wdiere the refusal to expel was put upon 
the ground that the House or Senate, as the case might be, had no 
right to expel for an act unrelated to the member as such, or because 
it was committed prior to his election. 

The most notable instances are the following: 


IN THE SENATE. 


1. The Humphrey Marshall case in 1790. Much dispute has arisen 
as to the ground upon which the Senate refused to expel. The fact 
remains, however, that he was charged with the commission of an 
offense—a grave offense in the State of Kentucky—unrelated to him as 
a Senator, and the report of the committee embodied the proposition 
that the Constitution did not give jurisdiction to the Senate to expel 
him. 

2. The case of John Smith arose in 1808. He was charged with par¬ 
ticipation in Aaron Burr’s conspiracy. The Senate refused to expel. 

3. In 1893 an effort was made in the Senate to expel William N. 
Roach, a Senator from North Dakota. He was charged with having 
committed a felony some years prior to his election. The case was 
elaborately argued on both sides, the objection to his expulsion being 
grounded upon the proposition that in such case the Senate had no right 
to expel. The subject was dropped. Those who were prosecuting the 
effort to expel him discerning, no doubt, that the Senate would never 
expel under such circumstances. 


IN THE HOUSE OF REPRESENTATIVES. 


1. O. B. Matteson had committed a grave offense during the Thirty- 
fourth Congress. He was elected to the Thirty-fifth Congress and 
was permitted to take his seat without objection. A resolution of 
expulsion was introduced and referred to a committee, which reported 
that the House had no authority to expel, because his offense was com¬ 
mitted while in a previous Congress. The House sustained the com¬ 
mittee. 

2. In the case of Oakes Ames and Janies Brooks, the special com¬ 
mittee reported in favor of expulsion. The Judiciary Committee 
reported against it, on the ground that the House had no authority to 
expel for acts committed before that Congress. The House refused 
to expel, and merely censured. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


5 


3. In the case of George Q. Cannon, Delegate from Utah in the 
Forty-third Congress, 1874 and 1875, we lind a series of events sug¬ 
gesting, in the light of this case, how history repeats itself. 

Cannon’s seat was contested by Maxwell, wiio had received but a hand¬ 
ful of votes, and had no right whatever to the seat, even if Cannon was 
not entitled to it. The claim was made that Cannon was a polygamist. 
There was no evidence at that time before the House that he tad mar¬ 
ried a plural wife after the act of 1862. If he had not, he had violated 
no law. A resolution was adopted declaring that he was entitled to the 
seat as Delegate, the claim being made that he might be proceeded 
against in expulsion proceedings. Whereupon, on the same da} r , 
May 12, 1874, a committee was appointed to investigate the question 
of Cannon’s polygamy and the right of the House to expel. It reported 
in January, 1875, that Cannon was a polygamist, and brought in a 
resolution of expulsion. A vigorous minority report was filed, in which 
the right of expulsion w T as combated on three grounds. 

First. That the House had already declared that Cannon was entitled 
to the seat. The force of the argument was apparent, for nothing had 
intervened to make him any less entitled then than on the day his title 
was confirmed by the previous action of the House. 

Second. That when Utah was created as a Territory Congress knew it 
would send Mormon delegates, and it ought not now to complain that 
a Mormon had come to the House. 

Third. That a graver ground of objection existed. 44 The question 
is,” said the report, 44 whether the House ought, as a matter of policy, or 
to establish a precedent, expel either a Delegate or Member on account 
of alleged crimes or immoral practices unconnected with their duties 
or obligations as Members or Delegates, when the Delegate or Mem¬ 
ber possesses all the qualifications to entitle him to his seat.” 

The reasoning of the committee and the cogent force of an 
unbroken line of precedents against expulsion seem to have pro¬ 
foundly impressed the House, for when a couple of weeks later the 
case was called up and the question of consideration raised, only a 
beggarly twenty-one could be found ready to take up the case and it 
was never heard of again. 

Thus ended the first campaign to confirm a polygamist in his seat 
in the fond hope that he might later be expelled. 

4. The next is the case of Schumaker and King in connection with 
the China mail service, August 9, 1876. The Committee on the 
Judiciary submitted a report, in the course of which it asserted that 
the House of Representatives had no authority to take jurisdiction of 
violations of law or offenses committed against a previous Congress. 
Referring to the constitutional provision respecting expulsion, it sa}-s: 

This power is evidently given to enable each House to exercise its constitutional 
function of legislation unobstructed. 

The committee recommended that the House leave the charges 
against Schumaker and King 44 where they are now,” in court. 

The minority report did not combat the position of the majority, in 
so far as this case is concerned. They say that— 

They do not deny but that there are limitations on the power of this House [to 
expel] arising from the circumstances of particular cases and the relations of this 
House to the constituency of an accused member; therefore, as will be seen, the 
undersigned need not go further in this case than to assert jurisdiction, because the 
offenses complained of were not known to the constituents of the members in ques¬ 
tion until after their election. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


6 


If there is any fact apparent in this case it is that the constituents 
of Mr. Roberts knew all about him before his election. 

Can there be room to doubt the proper action of the House? Is it 
prepared to yield up this salutary power of exclusion ? Will it'declare 
itself defenseless and ridiculous ? 

Nor are those who assert that expulsion is the remedy necessarity 
barred from voting for the resolution declaring the seat vacant. He 
must, indeed, be technical and narrow in his construction of the Con¬ 
stitution who will not admit that if a vote to declare the seat vacant is 
sustained by a two-thirds majority the Constitution is substantially 
complied with. He may not agree with the committee that a mere 
majority can exclude, but he can reserve the right to make the point 
of order that the resolution is not carried if two-thirds do not vote 
for it. 


ARGUMENT. 

Under the form in which the resolution was submitted to the com¬ 
mittee two questions appear: 

First. As to the prima facie right* of the member-elect from Utah 
to be sworn in; and 

Second. As to his final right to a seat in the House. 

First. As to the Prima Facie Right. 

Upon this question little need be said except what is hereafter said 
in relation to the final right to a seat. The questions are inextricably 
interwoven, and for convenience the main body of authority against 
his prima facie right to be sworn in is presented in the argument made 
against his final right to a seat. 

Both Houses of Congress have in innumerable instances exercised 
the right to stop a member-elect at the threshold and refuse to permit 
him to be sworn in until an investigation had been made as to his right 
to a seat. In some cases the final right was accorded the claimant; in 
many cases it was denied. 

This question, as we view it, is always to be answered from the 
standpoint of expediency and propriety. The inherent right exists of 
necessity. The danger of disorder and of blocking the way to an' 
organization vanishes in view of the proper procedure. The most 
strenuous objection is made by those who imagine, for instance, that 
if the person whose name was first called should be objected to, he 
might refuse to stand aside until the remaining members were sworn 
in. The claim is made that this must inevitably result in confusion 
and demoralization, and in furnishing an opportunity for an arbitrary 
and unjust exercise of power on the part of the House. 

The answer to this is that every person holding a certificate, whose 
name is on the Clerk’s roll, where it is placed by operation of law, is 
entitled to participate in the organization of the House, whether sworn 
in or not. Such is the effect and the only effect of the certificate. If 
the members elect, other than the person objected to, desire so to do 
they can prevent his being sworn in. This lodges no more power in 
the majority, however arbitrary it may be, than that majority always 
has, whether on the day of the organization or a week or a month 
thereafter. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


7 


The fear that injustice may be done by it in time of great party 
excitement is not justly grounded in theory, nor has it occurred in 
practice; while on the other hand injustice has often occurred in the 
unseating of members in case of contested elections. It is always, 
whether at the threshold or after the House is fully organized, a ques¬ 
tion of the power of the majority. It is no more dangerous or dis¬ 
organizing in the one instance than in the other. There can be no 
injustice done when every man holding a certificate, whether sworn in 
or not, is entitled to vote for a speaker, and upon the right of every 
other member-elect to be sworn in. 

If, by way of illustration, Mr. Roberts had been the first person 
whose name was called, and he had objected to standing aside, the 
House, for the purpose of organization, and for the purpose of voting 
upon the question as to whether he should then be sworn in, would be 
completely organized, and every other member present, although not 
one of them had been sworn in, would be entitled to vote upon that 
question. This, it seems to us, dissolves every imagined difficulty and 
permits the easy organization of the House. 

If every individual member had been objected to, seriatim, the only 
objectionable result would have been the inconvenience and delay 
involved in the time necessary to vote upon all the cases. 

Judge McCrary’s statement (sections 283 and 284 in his work on 
Elections) is a sound and correct declaration of the law applicable to 
the right of the House to compel a member who is objected to to stand 
aside, and not permit him to be sworn in until his case is investigated. 
It is as follows: 

If a specific and apparently well-grounded allegation be presented to the House of 
Representatives of the United States that a person holding a certificate of election is 
not a citizen of the United States, or is not of the requisite age, or is for any other 
cause ineligible, the House will defer action upon the question of swearing in such 
person until there can be an investigation into the truth of such allegations. 

It is necessary, however, that such allegations should be made by a responsible 
party. It is usually made, or vouched for, at least, by some member or member- 
elect of the House. It is to be presented at the earliest possible moment after the 
meeting of the House for organization, and generally at the time that the person 
objected to presents himself to be sworn in. The person objected to upon such 
grounds as these is not sworn in with the other members, but stands aside for the 
time being, and the House, through its committee, will with all possible speed pro¬ 
ceed to inquire into the facts. 

The certificate of election does not ordinarily, if ever, cover the grounds of the 
due qualifications of the person holding it. It may be said that by declaring the 
person duly elected the certificate by implication avers that he was qualified to be 
elected and to hold the office. But it is well known that canvassing officers do not 
in fact inquire as to the qualifications of persons voted for; they certify what appears 
upon the face of the returns and nothing more. 

This is not quoted as being authoritative in itself, but because it is 
an exact statement of what the precedents and authorities on that sub¬ 
ject clearly disclose. 

Second. As to His Final Right to a Seat. 

Three main grounds are asserted for the exclusion of Roberts from 
membership in the House. 

I. He is disqualified by reason of his violation of the Edmunds Act 
and the declared policy of disqualification in section 8. 

II. He is disqualified because for years he has been living in open, 
flagrant, and notorious defiance of the statutes of Utah and in open, 


8 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


flagrant, and notorious defiance of the statutes of Congress—of the 
very body which he now seeks to enter; in defiance of the law as 
declared by the Supreme Court of the United States, and in defiance 
of the proclamations of Presidents Harrison and Cleveland. Pie has 
persistently held himself above the law. This is disloyalty in its very 
essence. In the language of Chief Justice Waite, in the Reynolds Case, 
this would in effect “ permit every citizen to become a law unto him¬ 
self. Government could exist only in name under such circumstances.” 

III. His election as Representative is an explicit and most offen¬ 
sive violation of the understanding by which Utah was admitted 
as a State. It is an act of unmatched audacity, the possibility of which 
could no more have been considered when the State of Utah was 
admitted than that a specific permission would have been given to 
renew the practice of polygamous marriages. 

To deny him admission now would be to do precisely what Jeremiah 
M. Wilson advised Congress it could do and ought to do when he was 
advocating, in behalf of the people of Utah and the Mormon Church, 
the admission of Utah under the constitution of 1887. This constitu¬ 
tion had a similar provision to that of 1895, and in his printed brief 
Judge Wilson said that if the contract was violated— 

You could shut the doors of the Senate and the House of Representatives against 
them; you could deny them a voice in the councils of the nation, because they had 
acted in bad faith and violated their solemn agreement by which they succeeded in 
getting themselves into the condition of a State. 

INTRODUCTORY. 

This question meets us at the threshold: Does the constitutional 
provision, “No person shall be a Representative who shall not have 
attained to the age of twenty-five years, and been seven years a citizen 
of the United States, and who shall not, when elected, be an inhabitant 
of the State in which he shall be chosen,” preclude the imposition of 
any disqualification bj" Congress or by either House? 

Must it be said that the constitutional provision, phrased as it is, 
really means that every person who is 25 years of age, and who has 
been for seven years a citizen of the United States, and was, when 
elected, an inhabitant of that State in which he was chosen, is eligible 
to be a member of the House of Representatives and must be admitted 
thereto, even though he be insane, or disloyal, or a leper, or a criminal? 

Is it conceivable that the Constitution meant that crime could not 
disqualify ? The whole spirit of government revolts against any such 
conception. 

Not now discussing the question as to whether or not that constitu¬ 
tional provision is exclusive, so far as ordinary qualifications are con¬ 
cerned, is it to be said that there is in it no implied power of disquali¬ 
fication for reasons which appeal to the common judgment of mankind, 
and which are vital and essential to the very constitution and integrity 
of the legislative body as such ? 

We are compelled to answer that that provision, in the sense to which 
we have just adverted, is not exclusive, and that reasonable disquali¬ 
fications may attach to certain individuals, which may, for the sake of 
argument, be assumed to amount in practice to added qualifications. 

A marked distinction is to be made between arbitrary disqualifica¬ 
tions and those which arise out of the voluntary act of the individual 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


9 


who places himself, b} r the commission of an offense against the law 
or civilization, within the prohibited class. We believe , whatever 
general statements may have been made by public men , that no commenta¬ 
tor on tire Constitution , no court , or either House of Ccmgress has ever 
questioned the propriety of that distinction , but that the contrary doc¬ 
trine has been universally held wherever the question was clearly raised. 

In our opinion it is demonstrable that no such exclusive meaning* 
can be given to the provision above quoted as is contended for on the 
other side of this proposition, and that the sound rule is declared by 
Burgess in his work on Political Science and Constitutional Law when, 
on page 52, he says: 

I think it certain that either House [of Congress] might reject an insane person 
* * * or might exclude a grossly immoral person. 

We desire at the very threshold of this discussion to lay down these 
general propositions, never to be forgotten and always to be kept 
clearly in mind: 

1st. That the House has never denied that it had the right to refuse to 
permit' a inember-elect to be sworn in , although he had all of the three 
Constitutional qualifications. 

2d. That it has in many instances affirmatively declared that it had 
the rigid to thus ref use. 

3d. That the rigid to so refuse is supported- on jyrinciple , and by the 
overwhelm ing weight of authority of const it utional writers and judicial 
opinions on analogous constitutional questions; and 

4th. Upon the converse proposition of admission and then expulsion 
we assert this: 

1st. That the House has never declared that it had the right to 
expel a member for acts unrelated to him as such , or for acts com¬ 
mitted prior to his election; and 

2d. That both the House and the Senate have in many instances 
refused to expel members where the proof of guilt teas conclusive , 
but where the acts complained of were unrelated to the members 
as such. 


THE STATUS OF THE CLAIMANT. 

Let us see in what attitude and status the claimant appears and 
claims the right to be sworn in. No appreciative opinion as to his 
status can be formed without some knowledge of the judicial and statu- 
tory characterization of his offense. 

Section 5352, passed by' Congress in 1862, declared: 

Every person having a husband or wife living who marries another, whether mar¬ 
ried or single, in a Territory or other place over which the United States have 
exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not 
more than $500, and by imprisonment for a term of not more than five years. 

It did not, however, make unlawful the practice of polygamous 
living. 

There was no pretense of obedience to this law in Utah, the claim 
being made that it was unconstitutional because an interference with 
the religion of the Mormons. There is no doubt but that a large body 
of the Mormons, not only those who practiced polygamy but those 
that did not, believed that the act of 1862 was an unconstitutional 
infraction of their rights. 

In 1878, however, in the case of Reynolds v. The United States (98 


10 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


U. S., 115) the Supreme Court held that section 5352 was .“in all 
respects valid and constitutional.” So that after 1878 no man in Utah 
could claim that the practice of polygamy was right as related to the 
laws of the land without doing violence, not only to the statute, but to 
the unanimous opinion of the highest court of the land. 

The opinion in this case was by Chief Justice Waite, and in the 
course of it polygamy receives judicial characterization as follows: 
we think it highly important to quote it because it is a judicial decla¬ 
ration and leads us up to a proper recognition of Mr. Roberts’ status: 

Polygamy has always been odious among the northern and western nations of 
Europe, and, until the establishment of the Mormon Church, was almost exclusively 
a feature of the life of Asiatic and of African people. 

By the statute of James I the offense was made punishable by death. 

It is a significant fact that on the 8th of December, 1788, after the passage of the 
act establishing religious freedom, and after the convention of Virginia had recom¬ 
mended as an amendment to the Constitution of the United States the declaration of 
the bill of rights that “all men have an equal, natural, and unalienable right to the 
free exercise of religion, according to the dictates of conscience,” the legislature of 
that State substantially enacted the statute of James I, death penalty included, 
because, as recited in the preamble, “it hath been doubted whether bigamy and 
polygamy be punishable by the laws of this Commonwealth.” From that day to 
this we think it may safely be said there never has been a time in any State of the 
Union where polygamy has not been an offense against society, cognizable by the 
civil courts and punishable with more or less severity. 

And, continuing the quotation: 

Marriage, while from its very nature a sacred obligation, is nevertheless, in most 
civilized nations, a civil contract, and usually regulated by law. Upon it society may 
be said to be built, and out of its fruits spring social relations and social obligations 
and duties, with which government is necessarily required to deal. In fact, accord¬ 
ing as monogamous or polygamous marriages are allowed, do we find the principles 
on which the government of the people to a greater or less extent rests; Professor 
Lieber says polygamy leads to the patriarchal principle, and which, when applied to 
large communities, fetters the people in stationary despotism, while that principle 
can not long exist in connection with monogamy. Chancellor Kent observes that 
this remark is equally striking and profound. 

Can a man excuse his practices to the contrary because of his religious belief? To 
permit this would be to make the professed doctrines of religious belief superior to 
the law of the land, and in effect to permit every citizen to become a law unto him¬ 
self. Government could exist only in name under such circumstances. 

So also in Murphy v. Ramsey (114 U. S., 45). Construing the 
Edmunds Act, Justice Matthews says: 

Certainly no legislation can be supposed more wholesome and necessary in the 
founding of a free, self-governing commonwealth, fit to take rank as one of the coor¬ 
dinate States of the Union, than that which seeks to establish it on the basis of the 
idea of the family, as consisting in and springing from the union for life of one man 
and one woman in the holy estate of matrimony; the sure foundation of all that is 
stable and noble in our civilization; the best guaranty of that reverent morality which 
is the source of all beneficent progress in social and political improvement. And to 
this end no means are more directly and immediately suitable than those provided by this act, 
which endeavors to ivithdraiv all political influence from those viho are practically hostile to 
its attainment. 

How cogent and prophetic are these words. How applicable to this 
situation ; that all political influence ought to be withdrawn from those 
practically hostile to the establishment of a “Commonwealth on the 
basis of the idea of the family as consisting in and springing from the 
union for life of one man and one woman in the holy estate of matri¬ 
mony.” 

There was no machinery for enforcing the act of 1862 until 1882, 
when Congress passed what is known as the Edmunds law. This act 
defined and punished bigamy and polygamy in the same terms as the 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


11 


act of 1862, but also punished unlawful cohabitation, and declared in¬ 
eligible for office any person who maintained the status of a polyga¬ 
mist or who cohabited with more than one woman. 

Section 8 of that act is as follows: 

That no polygamist, bigamist, or any person cohabiting with more than one 
woman, and no woman cohabiting with any of the persons described as aforesaid in 
this section, in any Territory or other place over which the United States have 
exclusive jurisdiction, shall be entitled to vote at any election held in any such Ter¬ 
ritory or other place, or be eligible for election or appointment to, or be entitled to 
hold, any office or place of public trust, honor, or emolument in, under, or for such 
Territory or place, or under the United States. 

This law had not only the force of a public law, but it was the out¬ 
come of years of agitation and reflection. It crvstalized the sober 
sense of the American people; it represented the settled views of our 
wisest and most conservative statesmen and later received the stamp 
of approval from the Supreme Court of the United States in many 
well-considered cases. 

Prior to 1882 Brigham H. Roberts had married one Louisa Smith. 
She has borne him six children, and is still living. 

About 1885, when Utah was fairly ringing with the blows of the 
Edmunds Act of 1882; while numerous prosecutions were going on 
and after the Supreme Court had passed upon the validity of the act; 
when the American people supposed that polygamy had received its 
deathblow; when no man of the many whose cases went to the United 
States Supreme Court pretended that the provisions against polyga¬ 
mous marriages were invalid, with all these facts insistently before 
him, Brigham H. Roberts took another wife—his first polygamous 
wife—Celia Dibble by name, who in the following twelve years, bore 
him six children. 

This second wife he married in defiance of the Edmunds law. He 
spat upon that law; he declared by his act that he recognized no bind¬ 
ing rule upon him of a law of Congress; he declared by it that he rec¬ 
ognized a higher law. The Congress of the United States was to him 
an object of contempt. The Supreme Court of the United States might 
declare the law for others, but not for him. He laughed at its futile 
decrees and spurned its admonitions. The Executive which had declared 
in solemn messages its gratification that polygamy seemed gone for¬ 
ever he defied and despised. Of what consequence to him were laws 
of Congress and declarations of the highest court and proclamations 
of Presidents as against his sensual interpretation of a sensual doctrine? 

And all the time the Edmunds law declared not only polygamy but 
cohabitation with more than one woman unlawful. Roberts not only 
bigamously married a second wife, but he persisted in violating and 
defiantly trampling under foot every other provision of the act. 

But he had not yet sufficiently proclaimed his utter contempt for 
the Supreme Court, for Congress and its most solemn enactments. A 
few years later he took a third wife. 

From the time of his second marriage to the third he cohabited with 
two women. From the date of his third marriage down to his election, 
and, we doubt not, to the present time, he has been cohabiting with 
three women. 

As recently as December 6, 1899, he defined his position as follows: 

These women have stood by me. They are good and true women. The law has 
said I shall part from them. My church "has bowed to the command of Congress and 
relinquished the practice of plural marriage. But the law can not free me from obli- 


12 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


gations assumed before it spoke. No power can do that. Even were the church that 
sanctioned these marriages and performed the ceremonies to turn its back upon us 
and say the marriages are not valid now, and that I must give these good and loyal 
women up, I’ll be damned if I would. 

In this statement he adheres to the audacious assumption that the 
law of 1882 did not speak to him and that he did not recognize it as a 
rule of conduct to him. 

The amnesty proclamation of 1893 and 1891 never embraced him. 
There was never a moment when its provisions were complied with by 
him. There has never been a moment since he married Celia Dibble 
down to the present moment when he has not been a persistent, noto¬ 
rious, defiant, demoralizing, audacious violator of every provision of 
the State and Federal law relating to polygamy and its attendant 
crimes. And this is the man who seeks admission to this body. 

It was declared in the Kentucky cases, and in the Thomas case in 
the Senate, and in the Test Oath Act of 1862 that disloyalty created 
ineligibility; that fidelity to the Constitution was a necessary qualifica¬ 
tion to membership in this body. What is loyalty? It is faithfulness 
to the sovereign or the lawful government. A mere violator of the 
law may not necessarily be disloyal. One may violate the law and 
still recognize the sovereign and the lawfulness of the government. 
His only concern may be that he shall not be found out and punished. 
But that man is surely disloyal, and in the fullest sense disloyal, when 
by his words, his acts, and his persistent practices he declares unequivo¬ 
cally in this wise: “ You have solemnly enacted certain laws; you have 
crystallized into statute the will of the sovereign people. I bid defi¬ 
ance to your law. I will not recognize it. I here and now before your 
very eyes do the things you say I shall not do. I recognize a higher 
law than your man-made law—no law of yours can relieve me from 
the obligations which I thus take in defiance of your enactments. The 
only thing I promise not to do is to take a fourth wife.” 

The case of a bribe taker, or of a burglar, or of a murderer is trivial, 
is a mere ripple on the surface of things, compared with this far-reach¬ 
ing, deep-rooted, audacious lawlessness. 

What was the case of Whittemore, who was excluded, as hereafter 
set out? He had not been convicted of any crime, but a committee 
had found that he had sold a cadetship. He did not pretend that he 
was wiser or greater than the people, or that he had the right to sell 
cadetships and was above the law. The acts of Roberts are essentially 
disloyal. They den}Hhe sovereign; they repudiate the lawful govern¬ 
ment. Look at them from whatever point you will, they are sub¬ 
versive of government, They do not merely breed anarchy, they are 
anarchy. 

We observe that this is not a moral question. It goes to the root of 
our own constitutional government. What we have just quoted from 
Justice Waite and Justice Matthews are as much a part of our Con¬ 
stitution as the written instrument itself. 

THE DUTY AND POWER OF THE HOUSE. 

We have thus presented to our view the status of Roberts. What 
are we going to do about it? 

We assert that it is our duty, as it is our right, to exclude him; to 
prevent his taking the oath and participating in the councils of the 
nation. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 13 

Three methods present themselves by which to test the soundness of 
this view: 

First. On principle, and this involves— 

(1) The nature of the legislative assembly, and the power necessarily 
arising therefrom; 

(2) The express language of the constitutional provision; 

(3) The reasons for that language; 

(4) Its context and its relation to other parts of the instrument; 

(5) The obvious construction of other portions of the same instru 
ment necessarily subject to the same rule of construction. 

Second. The text-books and the judicial authorities. 

Third. Congressional precedents. These are of two classes— 

(1) Action respecting the rights of individual members; 

(2) Acts of Congress and general resolutions of either house. 

First.— On principle. 

As to the first proposition, what is the argument on principle? 
We think it will be undoubted that every legislative body has unlim¬ 
ited control over its own methods of organization and the - quali¬ 
fications or disqualifications of its members, except as specifically 
limited by the organic law. We do not think that this proposi¬ 
tion needs amplifying; it is axiomatic. It is apparent that every 
deliberative and legislative body must have supreme control over its 
own membership, except in so far as it may be specificalty limited by 
a higher law; there is a distinction to be drawn between the legislative 
power of a legislative bod} 7 and its organizing power, or those things 
which relate to its membership, and its control over the methods of 
performing its allotted work. That is to be distinguished from the 
legislative power to be expressed in its final results. 

When our Constitution was framed there was practically no limit 
to the right and power, in these respects, of the English Parliament. 
Such power is necessary to the preservation of the body itself and to 
the dignity of its character. In England it was at one time admissible 
to permit the admission into the House of Commons of minors, of 
aliens, and of persons not inhabitants of the political subdivision in 
which they were elected. To this day it is well known that an 
inhabitant of London may be elected by a Scotch constituency, and 
a member has been elected by more than one constituency to the 
same Parliament. 

The framers of the Constitution, familiar wdth these facts, proposed 
to prevent their happening in this country. They knew also that a 
similar latitude of choice had been exercised in the original colonies 
and in the States of the Federation, and it was proposed to put a stop 
to it so far as Congress was concerned. A very luminous argument was 
made on this subject by John Randolph in the House of Representa¬ 
tives in 1807. 

We quote as follows from his remarks: 

If the constitution had meant (as was contended) to have settled the qualifications 
of members, its words would have naturally run thus: “Every person who has 
attained the age of twenty-five years, and been seven years a citizen of the United 
States, and who shall, when elected, be an inhabitant of the State from which he 
shall be chosen, shall be eligible to a seat in the House of Representatives.” But so 
far from fixing the qualifications of members of that House, the constitution merely 
enumerated a few disqualifications within which the States were left to act. 


14 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


It is said to the States, you have been in the habit of electing young men barely of 
age; you shall send us none but such as are five and twenty. Some of you have 
elected persons just naturalized; you shall not elect any to this House who have not 
been some seven years citizens of the United States. Sometimes mere sojourners and 
transient persons have been clothed with legislative authority. You shall elect none 
whom your laws do not consider as inhabitants. 

In pursuance of the idea in the mind of the framers of the Constitu¬ 
tion, we have the peculiar words “no person shall be a Representa¬ 
tive who shall not have attained, etc.” How happy indeed are these 
words if we give them precisely the force and meaning for which we 
contend. How unhappy and how misleading, how impossible, in fact, 
to the masters of the English language who wrote them, if the}^ were 
intended to exclude all other possible requirements or disqualifica¬ 
tions. We might admit such construction if suitable language was 
difficult to find or frame; but note how easily such a purpose could have 
been served in fewer Avords and with unmistakable meaning. Thus: 
“Any person,” or “a person,” or “every person may be a Representa¬ 
tive who shall have attained the age of twenty-five years,” etc. 

The provision seems to be worded designedly in the negative so as 
to prevent the suspicion that it was intended to be exclusive, and so 
as to prevent the application of the rule, “ the expression of one thing 
is the exclusion of another.” The immediately preceding clause is 
affirmative, and says: “The electors in each State shall have the quali¬ 
fications,” etc. With some show of propriety it can be claimed that 
this provision is exclusive. It at least does not have the negative 
form to condemn such construction. 

Story says (Constitution, sec. 448): 

The truth is, that in order to ascertain how far an affirmative or negative proposi¬ 
tion excludes or implies others, we must look to the nature of the provision, the sub¬ 
ject-matter, the objects, and the scope of the instrument. These, and these only, 
can properly determine the rule of construction. There can be no doubt that an 
affirmative grant of powers in many cases will imply an exclusion of all others. 

It is a notable fact that in the first draft of this constitutional pro¬ 
vision which provides for qualifications of Representatives in Con¬ 
gress, the language was affirmative and positive, and that when it was 
finally presented for adoption it appeared in the form in which we 
now find it. 

The slight contemporaneous discussion in the Constitutional Con¬ 
vention was upon the provision in the affirmative form. Why was it 
changed in the negative ? Surely not for the sake of euphony. And 
certainly not to make it more explicitly exclusive. 

In the report of the committee of detail, submitting the first draft 
of the Constitution, this section read in the affirmative and as follows: 

Every member of the House of Representatives shall be of the age of 25 years at 
least; shall have been a citizen of the United States for at least three years before 
his election, and shall be at the time of his election a resident of the State in which 
shall be chosen. 

In the discussion Mr. Dickinson opposed the section altogether, 
expressly because it would be held exclusive, saying he— 

was against any recitals of qualifications in the Constitution. It was impossible to 
make a complete one, and a partial one would, by implication, tie up the hands of 
the legislature from supplying omissions. 

Mr. Wilson took the same view, saying: 

Besides, a partial enumeration of cases will disable the legislature from disquali¬ 
fying odious and dangerous characters. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


15 


The next clay after this discussion, and when the clause respecting 
age, etc., had, in its general sense, been informally approved, a pro¬ 
posed section respecting a property qualification was discussed. Mr. 
Wilson said (Madison Papers, vol. 5., p. 401) that he thought “it 
would be best, on the whole, to let the section go out; this particular 
power would constructively exclude every other power of regulating 
qualifications.” What did Mr. Wilson mean if the result of the dis¬ 
cussion in which he participated on the preceding day was to “con¬ 
structively exclude every other power of regulating qualifications?” 

In view of the objections urged by Dickinson and Wilson and their 
opinions as to the construction that would result and the consequences 
thereof the conclusion seCms reasonable, if not absolutely irresistible* 
that the change from the affirmative to the negative form was inten¬ 
tionally made, and with the very purpose of obviating such objections* 
and hence that in being negatively stated it was considered by the 
convention that the particular qualifications mentioned would not be 
exclusive and would not render impossible the “disqualifying odious 
and dangerous characters” and would not prevent “supplying omis¬ 
sions.” 

This section was finally reported and adopted in the negative form 
in which it now appears. The report of the committee seems to have 
been elaborately discussed. 

Where do we find ourselves in such a case as this? Suppose that 
Brigham H. Roberts, instead of being charged with potygamy, was 
charged with treason, not constructive treason, but actual treason, and 
suppose that a witness appeared before the committee—a credible wit¬ 
ness, whose testimony was undisputed—who testified that he had seen 
Brigham H. Roberts wage war against the United States in the Spanish 
war, giving aid and comfort to Spain, not constructively, but actively; 
and suppose that Roberts appeared himself before the committee and 
said, “All that this man says is true; I did wage war against the United 
States; I did give aid and comfort to its enemies in time of war against 
a foreign foe, and I glory in it.” Now, in that state of facts the law 
could not la\ T its hand upon him for the crime of treason, for the Con¬ 
stitution provides that no person shall be convicted of treason except 
upon the testimony of two witnesses to the same overt act or by con¬ 
fession in open court. So that under the state of facts thus presented 
he could not be convicted of treason. 

Suppose he was here with a certificate of election from a great State 
and demanded admission. Upon the theory of the other side we must 
admit him. The minority insist that in such a case he must be sworn 
in. It will not do to say that practically no wrong would be 
done on the ground or on the theory that he might be immediately 
thereafter expelled, for he would have a right to be heard in his own 
defense, he would have a right to be heard as to whether the House 
had a right upon those facts to expel, and it might take much time. 
In any event he would be there fully armed with all of the powers 
and privileges of a member of the American House of Representatives. 
We think that the civilized world would declare that it made itself 
ridiculous if it confessed its want of power to keep out from the coun¬ 
cils of the nation a man who was a confessed traitor. 

Another illustration. Suppose that on the 1st day of January, 1899, 
two months after his election and two months before his term as a 
Representative should commence, he had been convicted of the crime 


16 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


of bigamy or of adultery, either one of which is a felony under the stat¬ 
utes of Utah, for an offense, w r e will presume, committed prior to his 
election, so that it can not be charged that after his election he volun¬ 
tarily put himself in that position, and he was tried, convicted, and 
sentenced to the penitentiary for a term of two years; and it so occurs 
that his term of imprisonment should expire on the 3d day of March, 
1901, the day before his term as Representative in Congress expires. 
Suppose he presented himself on the 3d day of March, 1901, no action 
having been previously taken in his case, would the House have to 
admit him, or would not the proper proceeding be while he was still 
in the penitentiary, for such an offense, for the House to declare his 
seat vacant; that he ought not to have or retain a seat in the American 
House of Representatives. 

It may be said that that imprisonment would amount to a construct¬ 
ive resignation. There is no precedent for that. The Yell case is 
entirely different. An election was held for a successor to Yell, and 
the seat was recognized to be vacant upon the express ground that he 
had taken another office incompatible with his position as a member 
of Congress, and that since he was occupying and exercising the func¬ 
tions of that office, of course that vacated ipso facto his position as 
Representative in Congress. 

It is well settled that while the mere appointment or election to an 
office the duties of which are incompatible with those of one already 
held will not vacate such an office, the acceptance of the incompatible 
office ipso facto vacates the first office held. This doctrine is laid 
down in Willcox, in Angel and Ames on Corporation, section 131; in 
Whitney against Canique, 2 Hill, 93; Cushing’s Law r on Practice of 
Legislative Assemblies, section 179, and many other authorities. 

Let us assume, further, that that sentence of imprisonment would not 
expire until after the 1th of March, 1901, so that during all of that 
period Roberts would be incapacitated from being present to demand 
the right to be sworn in; what is the remedy? W r e think it clear that 
the seat is not vacated by the mere fact that he does not present him¬ 
self; by the mere fact that he remains absent. A man might be sick, 
and he might remain away the entire, session, hoping that he might 
become well enough to attend, and Roberts might indulge the hope 
that he would be pardoned, and thus get in. Is it to be said that the 
House on that state of facts can not declare the seat vacant and per¬ 
mit the governor to issue a new writ and call another election ? If it 
can not, then we are .face to face with the proposition that the people 
of the State must remain unrepresented during the entire term of 
Congress. 

Suppose another case. That in the midst of the organization, and 
before being sworn in, a member-elect should so indecently and out¬ 
rageously conduct himself before the eyes of the House and the assem¬ 
bled multitude as to demand and justify expulsion if he had so con¬ 
ducted himself after he had been sworn in. What would the House 
do ? In the midst of his outrageous misconduct must the House, with 
tender persuasiveness, beg him to honor it by being sworn in so that 
he may be turned out, or would it refuse to swear him in and proceed 
to declare his seat vacant? Could the strictest constructionist of the 
Constitution deny that the Constitution was substantially complied 
with if he was excluded by a two-thirds vote, even if he did not assent 
to our view in all respects ? 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 17 

Suppose that the claimant to this seat, while enjoying through the 
courtesy of the House the privilege of the floor, should declare his 
contempt for this body and for the Government; that he respected 
none of its decrees or tlhe laws of the land as having any binding force 
upon him; that if he became a member of the House he should become 
so merely for the purpose of obstructing its business and to tear down 
the Government. What would the House do? Swear him in that it 
might have the ineffable privilege of turning him out? Or would it 
declare him unfit to have a seat in that body and declare his seat vacant? 

As Judge Shaw says in Hiss v. Bartlett (3 Gray, 473), “it is neces¬ 
sary to put extreme cases to test a principle.” 

So much for illustrations upon that question. Look, now, at the last 
paragraph of Article VI of the Constitution: 

The Senators and Representatives before mentioned, and the members of the 
several State legislatures, and all executive and judicial officers, both of the United 
States and of the several States, shall be bound by oath or affirmation to support this 
Constitution. 

Here is an affirmative declaration that a certain oath shall be admin¬ 
istered to certain officials. If the theory of exclusion is applied to 
the qualification clause as to Representatives, it must be applied to 
this clause, and therefore Congress has no power to demand any other 
oath, or superadd to this oath any other provisions. 

And yet the very oath we took as members of this House has addi¬ 
tional provisions. Congress passed also the test oath act in 1862, 
making vital additions to the constitutional oath, and, indeed, adding 
a new ground of disqualification for members of Congress. This act 
was passed by a large majority and compelled members of Congress 
to submit to that oath for many years. Chief Justice Marshall, the 
great expounder of the Constitution, in the case of McCulloch v. Mary¬ 
land, declared that “He would be charged with insanity who should 
contend that the legislature might not superadd to the oath directed 
by the Constitution such other oath or oaths as its wisdom might sug¬ 
gest,” and the whole opinion in that case is addressed in principle to 
the very doctrine that is here advocated. 

If Congress could add to the constitutional oath, the same theory of 
construction must permit it to at least add reasonable qualifications to 
the requirements for members of the legislative body, at least to the 
extent of declaring disqualifications which in their nature ought to 
bar a man from entrance into a great legislative body. 

The same clause to which we have just referred has this provision: 

But no religious test shall ever be required as a qualification to any office or public 
trust under the United States. 

If the Constitution had laid down all the qualifications which Con¬ 
gress or any other power had the right to impose it was unnecessary 
to go on and declare that no religious test should be required. That 
great instrument is inconsistent in its parts and contradictoiy of itself 
if it be true that it meant that no disqualifications should be provided 
except those named. Nor was it necessary, if the proviso means an 
oath merely, that such exception should be made, for the preceding 
words of the paragraph set out the required oath. 

The effort to make the negative declaration of minimum qualifica¬ 
tions exclusive of all others, whatever the necessities of the House may 

H. Rep. 85-2 



18 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


be, falls to the ground if we admit that the paragraph respecting oaths 
is in the same instrument as that which defines the qualifications of 
members of Congress. 

Second. 

The text-books . 

Let us now proceed with what we have called the text-book and 
judicial authority. 

There is a statement in Story’s work on the Constitution to the effect 
that the clause in the Constitution describing the qualifications for 
Representatives in Congress would seem to imply that other qualifica¬ 
tions could not be added. 

Now, whether or not that be sound, these two observations are to 
be made upon it: 

First. That it is dismissed in a very few words. Justice Story him¬ 
self disclaims explicitly in his work that he gives his own opinion as 
to what the Constitution means, but asserts that he undertakes merely 
to give the statements of others. 

Second. This statement of Judge Story does not at all interfere 
with the proposition we have laid down: That the power of the House 
to exclude from its membership a person who is, for instance, disloyal, 
a criminal, insane, or infected with a contagious disease is not super¬ 
adding any qualification, within the meaning of Story, such as a prop¬ 
erty qualification or an educational qualification. 

We find, however, that Story’s expression, if it means all that is 
claimed for it by the minority, does not accord with the opinion of 
other commentators, with the courts or with the Congressional prec¬ 
edents. We have already quoted and will not now repeat what is said 
by Prof. John W. Burgess, professor of history, political science, and 
international law, and dean of the university of political science in 
Columbia College, New York. This ambitious work, published in 1896, 
must be considered an authority on the subject of constitutional law. 

In Pomeroy’s Constitutional Law, 3d edition, page 138, is the fol¬ 
lowing: 

The power given to the Senate and to the House of Representatives, each to pass 
upon the validity of the elections of its own members, and upon their personal quali¬ 
fications, seems to be unbounded. But I am very strongly of the opinion that the 
two Houses together, as one House, can not pass any statute containing a general rule 
by which the qualifications of members as described in the Constitution are either 
added to or lessened. Such a statute would not seem to be a judgment of each House 
upon the qualifications of its own members, but a judgment upon the qualifications 
of the members of the other branch. The power is sufficiently broad as it stands. 
Indeed, there is absolutely no restraint upon its exercise except the responsibility of 
the Representatives to their constituents. Under it the House inquires into the 
validity of the elections, going behind the certificates of the election officers, examin¬ 
ing the witnesses, and deciding whether the sitting member or the contestant received 
a majority of legal votes. The House has also applied the test of personal loyalty to 
those claiming to be duly elected Representatives, deeming this one of the qualifica¬ 
tions of which it might judge. 

Pomeroy is discussing the power of the House, not stating what 
somebody may have said. 

So, also, in the lectures of Justice Miller on the Constitution of the 
United States, page 194, is the following: 

Very few controversies, if any, have ever arisen in either body (that is, of Con¬ 
gress) concerning the qualifications of its members. It was at one time a question 
somewhat mooted w T hether the States could add to the qualifications w r hich the Con¬ 
stitution has prescribed for the members of the Senate or the House of Representa- 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


19 


tives, but it is now conceded that, this must be decided by the Constitution alone, 
because, though it might be conceivable that Congress might make some conditions 
or limitations concerning the eligibility of its members, it has not been done, and the 
constitutional qualifications alone regulate that subject. 

If a profound constitutional authority like Justice Miller had 
believed that the provision we are considering was absolutely exclu¬ 
sive and prevented the House or the Senate from exerting any such 
power it seems to us that he would have so declared. 

Throop on Public Offices, section 73, says: 

The general rule is that the legislature has full power to prescribe qualifications \ 
for holding office in addition to those prescribed by the Constitution, if any, provided 
that they are reasonable and not opposed to the constitutional provisions or to the 
spirit of the Constitution. 

Who shall say that the exclusion of Roberts on the ground of polyg¬ 
amy is “opposed to the spirit of the Constitution?” 

Cushing (Law and Practice of Legislative Assemblies, p. 195, sec. 
477) says: 

To the disqualifications of this kind may be added those which may result from 
the commission of'some crime which would render the member ineligible. 

The Courts . 

What have the courts said on similar propositions ? We first have 
the case of Barker v. The People (3d Co wen) [New York]. In that 
case it was held that every person not specifically disqualified by the 
Constitution was eligible to election or appointment to office. In so 
far as that particular statement goes, it is a denial of the broad right 
to superadd to the constitutional provision as to qualifications. But 
that statement, as applied to this case, loses all of its applicability, 
for two reasons: 

(1) Because it was not the question that it had to decide. 

(2 ) Because the judge distinctly and positively declares—and that was 
the point involved in the case—that notwithstanding that want of power 
in the legislature to add to the Constitution qualifications it did have 
the right to disqualify for crime. He proceeds to say that it might 
disqualify for crime upon conviction thereof. We apprehend that that 
is unimportant here, for if the House of Representatives has a right to 
disqualify for crime it has the power and the right to determine for 
itself whether the crime was committed, and not to depend upon a 
judicial conviction. The necessity for a judicial conviction is the more 
apparent where the person who seeks to take office undertakes to assume 
an executive office to which he has been elected or appointed, for there 
may not be any other than the ordinarily constituted court in which to 
try the question of his guilt of the offense that created his ineligibility. 

But it is not the settled doctrine of the law that disqualification for 
crime must be first adjudicated in the courts. The authorities are, 
the most of them, against that proposition, and for the sake of con¬ 
venience we shall refer to them here. 

We quote from Royall v. Thomas (28 Gratton (Va.), 130). The 
syllabus is as follows: 

Under the constitution and statute of Virginia, a party who has aided and assisted 
in a duel fought with deadly weapons may be removed from office by proceeding of 
quo warranto, or if that writ be not in use, by information in the nature of a quo 
warranto, though he has not been convicted of the offense in any criminal prosecu¬ 
tion against him. 


20 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


The court in this case say that the principal authority relied on in 
support of the contrary position to that stated in the syllabus is the 
Kentucky case of Commonwealth v. Jones. 

It was held in that case that the clause of the Kentucky constitution imposing the 
disqualification for office of the offense of dueling is not self-executing, except so far 
as it prevents those who can not or will not take the requisite oath from entering 
upon office. It was there held that a citizen willing to take such oath could not be 
proceeded against for usurpation of such office until he had been first indicted, tried, 
and convicted of the disqualifying offense. 

It was found, however [said the Virginia court in the Gratton case], on examina¬ 
tion, that much of the reasoning of the court in the Jones case turns upon the pecul¬ 
iar phraseology of the Kentucky constitution, in which it is declared that the offender 
shall be deprived of the right to hold any office, post, or trust under the authority of 
the State. 

The court agreed that if, instead of the words < ‘shall be deprived’ ’ the phrase 
“shall not be eligible” had been used, some of the difficulties attending the argu¬ 
ment to show that the provision is self-executing would have been obviated. 

In the case of Cochran v. Jones, involving the same question, the board for the 
determination of contested elections arrived at a very different conclusion upon the 
same clause of the Kentucky constitution. It will thus be seen that even in Ken¬ 
tucky there is such conflict of opinion in respect to the true interpretation of the 
constitutional provisions in question as deprives the decision - relied on by the 
defendants of the weight of being considered even persuasive authority. 

The provision in the Virginia constitution is as follows: “ No person who, while a 
citizen of this State, has, since the adoption of this constitution, fought a duel with 
a deadly weapon, sent or accepted a challenge to fight a duel with a deadly weapon, 
shall be allowed to vote or hold any office of honor, profit, or trust under this con¬ 
stitution.” 

The court goes on to explicitly hold that previous conviction was 
unnecessary, arguing it with great force. 

The same doctrine is held in Mason v. The State (58th Ohio State), 
where Mason, who had been elected probate judge of a county in Ohio, 
had expended more money to bring about his election than the corrupt 
practices act allowed, and as this act disqualified such person from 
holding the position to which he was elected, the supreme court held 
that he could be thus disqualified and kept out of office without con¬ 
viction. 

To the same effect is the case of Commonwealth v. Walter (83 
Pennsylvania State, 105). 

Proceeding with the enumeration of authorities as to the exclusive 
effect of the constitutional provision defining or declaring qualifica¬ 
tions for office, the next case to which we call attention is.Rogers v. 
Buffalo (123 New York). We quote from page 184: 

The case of Barker v. The People (3 Cowan, 686) has been cited by counsel. That 
case holds the act to suppress dueling, which provided as a punishment for sending 
a challenge that the person so sending should, on conviction, be disqualified from 
holding any public office, was constitutional. The chancellor, in the course of his 
opinion, said he thought it entirely clear that the legislature could not establish arbi¬ 
trary exclusions from office, or any general regulation requiring qualifications which 
the Constitution had not required. What he meant by such expression is rendered 
clear by the example he gives. Legislation would be an infringement upon the 
Constitution, he thought, which should enact that all physicians, or all persons of a 
particular religious sect, should be ineligible to hold office, or that all persons not 
possessing a certain amount of property should be excluded, or that a member of 
assembly must be a freeholder, or any such regulation. 

But, in our judgment, legislation which creates a board of commissioners consist¬ 
ing of two or more persons, and which provides that not more than a certain proportion 
of the whole number of commissioners shall be taken from one party, does not 
amount to an arbitrary exclusion from office, nor to a general regulation requiring 
qualifications not mentioned in the Constitution. The “qualifications” which were 
in the mind of the learned chancellor were obviously those which were, as he said, 


CASE OF BRIGHAM H. ROBERTS, OF UTAH 


21 


arbitrary, such as to exclude certain persons from eligibility under any circumstances. 
Thus a regulation excluding all physicians would be arbitrary. But would a regula¬ 
tion which created a board of health and provided that not more than one physician 
from any particular school, or none but a physician, should be appointed thereon be 
arbitrary or unconstitutional as an illegal exclusion from office? I think not. 

The purpose of the statute must be looked at, and the practical results flowing from 
its enforcement. If it be obvious that its purpose is not to arbitrarily exclude any 
citizen of the State, but to provide that there shall be more than one party or interest 
represented, and if its provisions are apt for such purposes it would be difficult to say 
what constitutional provision is violated, or wherein its spirit is set at naught. 

And, again, on page 188— 

It is said that the legislature had no right to enact that a person who shall be 
appointed to a public office shall have the qualifications necessary to enable him to 
discharge the duties of such office, nor to provide that the fact that he does possess 
such qualifications shall be ascertained by a fair, open, and proper examination. 
Nothing but the bare oath mentioned in the Constitution can be asked of any appli¬ 
cant for an appointive office is the claim of the appellant. We do not think that the 
provision above cited was ever intended to have any such broad construction. Look¬ 
ing at it as a matter of common sense we are quite sure that the framers of our organic 
law never intended to impose a constitutional barrier to the right of the people 
through their legislature to enact laws which should have for their sole object the 
possession of fit and proper qualifications for the performance of the duties of a pub¬ 
lic office on the part of him who desired to be appointed to such office. So long as 
the means to accomplish such end are appropriate therefor they must be within the 
legislative power. 

The idea can not be entertained for one moment that any intelligent people would 
ever consent to so bind themselves with constitutional restrictions on the power of 
their own Representatives as to prevent the adoption of any means by which to 
secure, if possible, honest and intelligent service in office. No law involving any 
test other than fitness and ability to discharge the duties of the office could be legally 
enacted under cover of a purpose to ascertain or prescribe such fitness. Statutes 
looking only to the purpose of ascertaining whether candidates for an appointive 
office are possessed of those qualifications which are necessary for a fit and intelligent 
discharge of the duties pertaining to such office are not dangerous in their nature, 
and in their execution they are not liable to abuse in any manner involving the lib¬ 
erties of the people. 

And, again, on page 190— 

In this case we simply hold that the imposing of a test by means of which to secure 
the qualifications of a candidate for an appointive office, of a nature to enable him 
to properly and intelligently perform the duties of such office, violates no provision 
of our Constitution. 

This opinion was delivered by Justice Peckham, now a member of 
the Supreme Court of the United States. 

Another instructive case is that of Ohio ex rel. Attorney-General 
v. Covington, 29 Ohio State, page 102. The opinion is by Judge 
Mcllvaine, one of the ablest and most careful judges that ever sat in 
the Supreme Court of Ohio. He savs: 

The last objection made to the validity of this act is based on section 4 of article 15 
of the constitution, which declares: “No person shall be elected or appointed to any 
office in this State unless he possesses the qualifications of an elector. ’ ’ 

The question arises under the fourth section of the act (which the court is con¬ 
struing), which provides: “Each member and officer of the police force shall be a 
citizen of the United States, and a resident citizen for three years of the city in which 
he shall be appointed, and able to read and write the English language.’’ 

There is no claim made that the qualifications prescribed in the act, in view of the 
nature of the duties to be performed, are unreasonable, or even unnecessary, to the 
discharge of the duties. The point made is that disqualifications are imposed by 
the statute which are not imposed by the constitution. 

It is apparent that this statute is not in conflict with the terms of this constitutional 
provision. It does not authorize the appointment of a person who is not an elector. 
The express provision of the constitution is that a person not an elector shall not be 
elected or appointed to any office in this State. Now, unless the clear implication is 


22 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


that every person who has the qualifications of an elector shall be eligible to any office 
in this State, there is no conflict between the statute and the constitution. I do not 
believe that such implication arises. There are many offices the duties of which 
absolutely require the ability of reading and writing the English language. There are 
many electors who, from habit of life or otherwise, are wholly unfit to discharge the 
duties of many offices within this State. If the framers of the constitution had 
intended to take away from the legislature the power to name disqualifications for 
office other than the one named in the constitution, it would not have been left to 
the very doubtful implication which is claimed irom the provision under considera¬ 
tion. The power under the general grant being ample and certain, a statute should 
not be declared void because in conflict with an alleged implication, unless such impli¬ 
cation be clear and indubitable. 

We find the same doctrine in the case of Darrow v. The People, 8 
Colorado, page 417. The syllabus relating to this question is as 
follows: 

The statute designating the payment of taxes as a necessary qualification of mem¬ 
bership in the board of aldermen is not in conflict with section 6, article 7, of the 
constitution. 

The provision of that section is as follows: 

No person except a qualified elector shall be elected or appointed to any civil or 
military office in the State. 

The court says, on page 420, that it is argued that this provision— 

by implication inhibits the legislature from adding the property qualification under 
consideration. There is nothing in the constitution w'hich expressly designates the 
qualifications of councilmen in a city or towm, and this section contains the only lan¬ 
guage that can possibly be construed as applicable thereto. But it will be observed 
that the language used is negative in form—that it simply prohibits the election or 
appointment to office of one not a qualified elector. There is no conflict between it 
and the statute. By providing that a supervisor or an alderman shall be a taxpayer 
the legislature does not declare that he need not be an elector. Nor is the provision 
at all unreasonable. On the contrary, it is a safeguard of the highest importance to 
property owners within the corporation. 

The right to vote and the right to hold office must not be confused.- Citizenship, 
and the requisite sex, age, and residence constitute the individual a legal voter; but 
other qualifications are absolutely essential to the efficient performance of the duties 
connected with almost every office. And certainly no doubtful implication should 
he favored for the purpose of denying the right to demand such additional qualifica¬ 
tions as the nature of the particular office may reasonably require. We do not believe 
that the framers of the constitution, by this provision, intended to say that the right 
to vote should be the sole and exclusive test of eligibility to all civil offices, except 
as otherwise provided in the instrument itself; that no additional qualifications should 
ever be demanded, and no other qualifications should be imposed. 


Third. Legislative precedents. 

We proceed now to the legislative precedents upon this matter of 
exclusion, without admitting the person objected to to be sworn in. 

JEREMIAH LARNED. 

One Jeremiah Larned, as long ago as 1785, was elected to the legis¬ 
lature of Massachusetts, but it turned out that he had violated a law 
that that legislature had passed. And what was it? On election day 
he headed a riot for the purpose of preventing the collection of taxes. 
What did the fathers of that day do? They were not men who were 
regardless of human rights; they held that inasmuch as Larned had 
violated the law he was unworthy to take a seat upon that floor, and 
they kept him out. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


23 


SENATE. 

JOHN M. NILES. 

In the first session of the Twenty-eighth Congress, on the 30th of 
April, 1844, the credentials of John M. Niles as a Senator from Con¬ 
necticut were presented to the Senate and objection was made to the 
oath being administered. Mr. Jarnagin submitted a resolution refer¬ 
ring the credentials of Mr. Niles to a select committee, which was 
instructed— 

To inquire into the election, return, and qualifications of the said John M. Niles, 
and into his capacity at this time to take the oath prescribed by the Constitution of 
the United States. 

Mr. Jarnagin himself made a speech at that time, in which he took 
the view that it was a question of eligibility that was raised, and that 
a man who was insane was ineligible, and of course incapable of taking 
the oath. There was some discussion about it, and some doubt raised, 
and Mr. Niles’s colleague said he had no objection to the matter going 
to the committee. 

On May 16 following, the committee reported in favor of permit¬ 
ting Mr. Niles to take the oath, which was then administered. It 
appears from the report that Mr. Niles had been suffering from severe 
bodily afflictions which impaired his mind to such an extent that he 
was removed to the insane asylum at Utica, N. Y., where he remained 
until April 1, 1844, after which he was discharged as improved, but 
not completely restored to health. The committee reported that while 
Mr. Niles was laboring under mental and physical disability he was 
not of unsound mind in the technical sense of that phrase. 

If this case establishes anything, it establishes the right of the Sen¬ 
ate to protect itself against a person of infirm or unsound mind; that 
it recognized that it had the right to exclude a person possessed of 
every qualification which the Constitution required if he was not of 
sound mind. 

PHILIP F. THOMAS. 

Another case in the Senate was that of Philip F. Thomas, of Mary¬ 
land, in the Fortieth Congress. His credentials were presented on 
March 18, 1867, and the following day were referred to the Judiciary 
Committee. There was a very elaborate debate. 

The charge against him was that he had been disloyal, and that he 
was therefore incapable of taking the test oath which was provided for 
in the act of July, 1862. 

The resolution which was then adopted, and under the provisions of 
which Thomas was excluded from the United States Senate, was as 
follows: 

Resolved , That Philip F. Thomas, having, voluntarily given aid, countenance, and 
encouragement to persons engaged in hostility to the United States, is not entitled to 
take the oath of office as a Senator of the United States from the State of Maryland, 
or to hold a seat in this body as such Senator, and that the President pro tempore of 
the Senate inform the governor of the State of Maryland of the action of the Senate 
in the premises. 

The vote for exclusion was 27 to 20. Among those voting in the 
negative was Lyman Trumbull. He did so because he thought the 
proof of disloyalty was unsatisfactory. 


24 


CASE OF BRIGHAM H ROBERTS, OF UTAH. 


His position on the question involved had, however, been clearly 
and unmistakably defined in the case of 

BENJAMIN STARK, 

who was appointed a Senator from Oregon early in 1862. 

There were ex-parte affidavits as to Stark’s disloyalty. He was not 
permitted at first to take the oath, and his case went to a committee, 
which reported in favor of letting Stark be sworn in, but without 
passing at all on the facts. The discussion of the case, however, 
showed that it would be impossible to take proof before the legislature 
of Oregon elected his successor. The state of the proof was so unsat- 
isfactor} 7 also that on the resolution to expel Stark not even a majority 
voted in the affirmative. On the preliminary question Mr. Trumbull, 
February 7, 1862, made an able and conclusive report. He said: 

It is admitted that neither the Senate, Congress, nor a State can superadd other 
qualifications for a Senator to those prescribed by the Constitution, and yet either 
may prevent a person possessing all those qualifications and duly elected from tak¬ 
ing his seat in the Senate. Does anyone question the right of a State to arrest for 
crime a person duly qualified for and appointed a Senator, hold him in confinement, 
and thereby prevent his appearing in the Senate to qualify? Suppose a Senator, after 
his appointment and before qualifying, commits the crime of murder, would any¬ 
one question the right of the State authorities where the crime was committed to 
arrest, confine, and, if found guilty, execute the murderer and thereby forever 
prevent his taking his seat? Or if the punishment for the offense w T as imprisonment, 
would anyone question the right to hold the Senator in prison and thereby prevent 
his appearing in the Senate? 

Could the Senate in such a case expel him before he had been admitted to a seat, 
or must he be brought from the felon’s cell, be introduced into the Senate and 
sworn as a member before his seat could be declared vacant? If not, must the State 
go unrepresented till the time for which he was appointed had expired? Or would it 
be competent for the Senate in such a case, by a majority vote, to declare the com 
vict incompetent to hold a seat in the body and thereby open the way for the 
appointment of a successor? It is manifest that the prescribing of the qualifications 
for a Senator in the Constitution was not intended to prevent his being held amen¬ 
able for his crime. 

The fact that the Constitution declares that Senators and Representatives “ shall in 
all cases, except treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the sessions of their respective Houses, and in going to 
and returning from the same,” is conclusive that for those offenses they may be 
arrested. As punishment for crime then, it is clear that a Senator-elect, possessing 
all the constitutional qualifications of age, citizenship, and inhabitancy, may be pre¬ 
vented from taking the oath of office. Congress has repeatedly acted upon the pre¬ 
sumption that it was entirely competent for it to prescribe as a punishment for crime 
and inability forever afterwards to hold any office of honor, profit, or trust under 
the United States. 

By a statute passed in 1790, any person giving a reward to a United States judge as 
a bribe to procure from him any opinion or judgment, and the judge receiving such 
bribe, are both declared to be forever disqualified to hold any office of honor, trust, 
or profit under the United States. 

By an act passed in 1853, any member of Congress, after his election, and whether 
before or after he is qualified, who shall accept any reward given for the purpose of 
influencing his vote on any question which may come before him in his official 
capacity, is declared incapable forever of holding any office of honor, trust, or profit 
under the United States. 

He goes further on and says that he shall forfeit his office. 

Does anyone doubt the power of Congress, under this clause of the Constitution, 
to declare that a person convicted of treason should forever be incapable of holding 
any office under the United States? If this were done, would it be contended that a 
convicted traitor was entitled to be sworn as a Senator? The clause of the Constitu¬ 
tion prescribing the qualifications of Senators and Representatives could never have 
been intended to limit the power to make disqualifications to hold those or any 
other offices a penalty for the commission of crime, especially of treason. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


25 


Doubtless [he says] a law of Congress declaring that a person convicted of a par¬ 
ticular offense should not hold office under the United States, and the decision of the 
courts sustaining such a law, would not preclude the Senate from admitting such a per¬ 
son to a seat should it think proper, because the Senate is the exclusive judge of the 
elections, returns, and qualifications of its own members. Yet it is hardly conceiv¬ 
able that the Senate ever would admit such a person to be sworn; nor does the fact 
that Congress has not adopted such a punishment for disloyalty or treason prevent 
the Senate from refusing to allow to be sworn as a member a person believed by the 
body to be guilty of those offenses or other infamous crimes. 

That one avowed traitor, a convicted felon, or a person known to be disloyal to the 
Government has a constitutional right to be admitted into the body would imply 
that the Senate had no power of protecting itself—a power which, from the nature 
of things, must be inherent in every legislative body. Suppose a member sent to the 
Senate, before being sworn, were to disturb the body and by violence interrupt its 
proceedings, would the Senate be compelled to allow such k person to be sworn as a 
member of the body before it could cast him out? Surely not, unless the Senate is 
- unable to protect itself and preserve its own order. The Constitution declares ‘ That 
each House may determine the rules of its proceedings, punish its members for dis¬ 
orderly behavior, and with the concurrence of two-thirds expel a member.” 

The connection of the sentence in which the power of expulsion is given would 
indicate that it was intended to be exercised for some act done as a member and not 
. for some. cause existing before the member was elected or took his seat. For any 
crime or infamous act done before that time the appropriate remedy would seem to 
be to refuse to allow him to qualify, which, in the judgment of the undersigned, the 
Senate may properly do, not by way of adding to the qualifications imposed by the 
Constitution, but as a punishment clue to his crimes for the infamy of his character. 

There is absolutely no doubt whatever that if the case of disloyalty 
had been stronger Stark would have been excluded. The weakness of 
the case in that respect is manifest when we remember that less than 
a majority voted to expel him. 


HOUSE. 

KENTUCKY CASES. 

On the 3d of July, 1867, the members-elect from the State of Ken¬ 
tucky presented their credentials to the House. They were not then 
permitted to be sworn in, on the ground that they had been disloyal or 
had expressed disloyal sentiments. 

If there is any criticism to be lodged against the action of the House 
at that time it is not that the theoretical ground upon which they based 
their action was untenable, but that they undertook to exercise the 
power to exclude a man for disloyalty years after he had been dis¬ 
loyal, as alleged, and after the time in which alone he could have been 
disloyal. 

The Committee on Elections, which took jurisdiction of the case 
under the order of the House, made several reports, all of which were 
of the same general character and all of which were sustained by the 
House. The reports were carefully prepared and were most elaborately 
argued. 

From the report filed by Mr. Dawes, as chairman, we quote as 
follows: 

The committee are of the opinion that no person who has been engaged in armed 
hostility to the Government of the United States, or who has given aid and comfort 
to its enemies during the late rebellion, ought to be permitted to be sworn as a mem¬ 
ber of this House, and that any specific and apparently well-grounded charge of per¬ 
sonal disloyalty made against a person claiming a seat as a member of this House 
ought to be investigated and reported upon before such person is permitted to take 
the seat. 


26 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


A second report was filed, in which it is said: 

The importance and gravity of the questions upon which the committee has been 
called to act, and the fact that in relation to those questions there are no precedents 
by which it might be guided in arriving at correct conclusions, have seemed to 
require that the committee should lay before the House the principles which have 
determined the character and result of its investigations and deliberations so far as 
such result has yet been reached. 

They follow that with this: 

The committee adhere to the views expressed in the former report, that no man 
who has been engaged in an attempt to overthrow the Government and subvert the 
Constitution by force of arms, or w’ho has voluntarily given aid, countenance, counsel, 
or encouragement to persons so engaged, ought to be admitted to a seat in this House 
to make laws for the nation he has traitorously sought to destroy; and it is apparent 
that there must be power in this House to prevent this, the House being the judge 
of the qualifications of its members, of which fidelity to the Constitution is one, and 
that this end can only be certainly accomplished by the investigating of any specific 
and apparently well-grounded charge of personal disloyalty made against a person 
claiming his seat as a member of this House before such person is permitted to take 
the seat. 

The House concurred in this view of the committee by adopting the resolution . 
under which the committee is now acting. The principle upon which this prelimi¬ 
nary investigation was ordered was adopted by Congress when the oath of office to 
be taken by members of this House was prescribed by law, and the preliminary 
investigation of specific and apparently well-founded charges against a person claim¬ 
ing a seat in this House is only an additional mode of attaining the same result sought 
to be secured by requiring the oath to be taken by all persons who become members 
of the House. The same principle has been affirmed by the President of the United 
States in his annual message, December 4, 1866, in which he says: 

“In the admission of'Senators and Representatives from all of the States there can 
be no just ground of apprehension that persons who are disloyal will be clothed with 
the powers of legislation, for this could not happen when the Constitution and the 
laws are enforced by a vigilant and faithful Congress Each House is made the judge of 
the election, qualifications, and returns of its own members, and may, with the concur¬ 
rence of two-thirds, expel a member. When a Senator or Representative presents his 
certificate of election he may at once be admitted or rejected; or, should there be any 
question as to his eligibility, his credentials may be referred for investigation to the 
appropriate committee. If admitted to a seat, it must be upon evidence satisfactory 
to the House of which he thus becomes a member that he possesses the requisite con¬ 
stitutional and legal qualifications. If refused admission as a member for want of due 
allegiance to the Government and returned to his constituents they are admonished 
that none but persons loyal to the United States will be allowed a voice in the legisla¬ 
tive councils of the nation, and the political power and moral influence of Congress 
are thus effectively exerted in the interest of loyalty to the Government of the United 
States and fidelity to the Union.” 

This proposition was argued in a letter which was written by Mr. 
Shellabarger, then a member from Ohio, but unable to be in his seat, 
and is here quoted: 

To the Committee on Elections of House of Representatives. 

Gentlemen: I have just received the communication of the committee through its 
clerk, asking that I should communicate to the committee my views as to the right 
of Mr. Smith and also of Mr. Brown to a seat in the House of Representatives! as 
shown by the evidence in the case now pending before the committee of Smith v. 
Brown, of Kentucky. 

This I proceed very cheerfully to do, regretting that I am deprived of consultations 
with the committee. In regard to the right of Mr. Brown to this seat, I now state, 
briefly, my vote and reasons. 

I understand that Mr. Brown’s right to this seat depends upon the determination 
of one or more of three questions. First, May a law such as that prescribing the 
test oath be constitutionally passed and enforced either as to any officer or as to a mem¬ 
ber of Congress? Is Mr. Brown excluded from this seat by a just construction of a 
“test oath?” I shall of course not discuss the constitutionality of the law prescrib¬ 
ing this oath and qualification, but assume that to be settled as constitutional. To 
hold that the oath of office required to be taken by Representatives and other offi- 


CASE OF BRIGHAM H. ROBERTS, OF UTAH 


27 


cers named in the sixth article and first section of the Constitution excludes them 
from being required by law to take any further obligation is, as seems to me, not 
only in violation of the express terms of the Constitution, but is in the face of both 
the. reason and. the practice which construes this section. Such construction is 
against the text itself of the Constitution, because that prescribes the thing which 
shall not be required as a qualification for office, to wit, “ religious tests.” Now 
surely, if the prescribing of one thing which each member should be required to do 
and swear was in this case meant to exclude all other requirements, then it was not 
only useless but calculated to mislead and deceive, to go on and give one and 
only one qualification as. the one which Congress might not require the officer to 
have. Surely the prescribing of one test as one that may not be required as much 
proves that any other test may be established as the fixing of one test being required 
excludes others from being required. 

The plain sense, therefore, of this clause is to name one quality which at least 
every member shall have, and one which at least shall not be required, and to leave 
the other qualifications to be regulated by the laws of the Government which the 
Constitution established. If this is not so, and if this clause excludes any officer 
named in the clause from being required to take any further obligation by his oath 
of office than that one named in the Constitution, then no State officer named in the 
same clause could be required to swear to support his State constitution; and no 
officer, State or Federal, could be required by law to take an oath to discharge well 
the duties of his office. Plainly this clause is not meant to exclude all other qualifi¬ 
cations for Federal office as unconstitutional. 

Exactly the same remarks apply to all other clauses touching the qualifications, etc., 
of officers and members. None of them can be construed to prohibit Congress from 
excluding from office an open and avowed traitor to his country any more than they 
can be construed to deny Congress the right to exclude the convicted felon or the 
insane from such offices. Congress, then, may by law exclude traitors from the 
offices of the Government, and “each House,” if not bound by such law as a law, 
may and ought at least to adopt such a “law” as a “rule,” not to be departed from, 
as to the qualifications of its members. I therefore hold that the House would do, 
against its dignity, its purity, its patriotism, and fitness to make laws, an act most 
monstrous, if not absolutely fatal, did it not, with unremitting vigor and sleepless 
vigilance, enforce this great act for the exclusion of the Government’s enemies from 
the control of the Government’s life; and of course this law, which should have to 
each House at least the force of an inflexible ‘ ‘ rule/ ’ should be applied alike in each 
House. 

The only other question, then, is whether Mr. Brown can properly be admitted to 
take this oath and seat. 

In answering this, the principal inquiry in the case, and the one which I think 
will be of vital importance in the future as it is in the present, I will first of all state 
what I deem the rule of exclusion from office which this law establishes. 

That the act which shall exclude the party from being permitted to take the oath 
and the office need not be treason, technically, I think, can not be fairly questioned. 

The law was passed with the utmost familiarity on the part of every member 
making it with the technical terms in which the Constitution defined treason. They 
adopted these constitutional words in the “test oath” and then added to them the 
-words “countenance,” “encouragement,” “counsel,” etc. Plainly, then, other 
acts against the Government than treason proper were meant to exclude from the 
Government’s offices. To find what is to be the safe, wise, and practical rule of 
exclusion from office under this important law, to have it adopted by both Houses 
of Congress and by all departments of the Government, and to make it of perpetual 
force, is the thing of incalculable importance in the present case—a case probably to 
become a precedent for all the future. 

From time to time after the objection was made to the swearing in 
of other members-elect, the House assumed jurisdiction, tried the 
cases in advance of administering the oath, and where, as sometimes 
had been the case, it appeared that the claimant had not been disloyal 
he was of course sworn in; in other cases he was excluded. 

The following quotation is made from the speech of Mr. Dawes on 
the Kentucky cases: 

[Extract from speech of Mr. Dawes, February 13, 1868. See Globe Appendix, vol. 68,1868.] 

I assume that the gentleman from Kentucky and the gentleman from Indiana 
-would expel a man from this House if he were guilty of treason, although I do not 


28 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


know that either of them has thus said so in so .many words. If I misstate them in 
this argument I would yield for correction. I assume that both of them would do it. 
The gentleman from Kentucky (Mr. Beck) put his idea of it in this form: 

‘ ‘ The power to expel a member, two-thirds voting therefor, is the only protection 
(and that is ample) against improper persons under the law holding seats in this 
body, while the right of a Representative to hold the position to which he has been 
chosen by his people, unless two-thirds of this House expel him therefrom, is equally 
clear. ’ ’ 

If he has a right to enter this body notwithstanding his disloyalty, what right have 
we to expel him afterwards for that disloyalty? And if we have a right to expel him 
for disloyalty, have we not a right to keep him out for the same disloyalty? 

But assuming, Mr. Speaker, that both these gentlemen would expel a man from 
the House if he were a traitor, I desire to inquire what for? Why would they expel 
a man from this House if he were a traitor? To punish him? Certainly not; for 
that is not the punishment prescribed for treason. Is it to overawe and restrain 
treason? That is puerile and ridiculous. What is it for? There is no other reason 
assignable except for the public safety. If I misjudge the gentlemen I want to know 
it. If they would not expel a man for treason from this House, or would not expel 
him from it because the public safety demanded it, I want to know r for what they 
would expel him? Now, sir, if it is because the public safety demands the expulsion 
of this man, I would like to inquire if the measure of the danger to the public safety 
must not govern and limit the means by which you insure that safety? Hamilton 
says that the means must be adequate to the end. If it is unsafe to trust the life of 
the nation to the keeping of traitors in this Hall by permitting them to remain in 
their seats here, is it not equally unsafe to admit them into those seats? Is not the 
public safety jeopardized by the very means thus resorted to—by the very admission 
of these men to their seats? If the public safety calls upon us to expel a man after 
he has put himself into his seat because he has the life of the nation in his keeping, 
is not the public safety regarded more, is not the public safer, by not letting him into 
the seat at all? The custody of the citadel is intrusted to your hands. The enemy 
approaches. You are bound to use all the means that are required to make that cita¬ 
del safe. Are you to admit the enemy within these walls and then drive him out, 
or are you rather to consult the highest safety of the citadel itself by keeping him out? 
******* 

This, sir, is no new proposition. The doctrine that this House has the right and 
power and duty incumbent upon it to exclude disloyal men from seats on this floor 
has been held by all men ever since this war ended. All parties have defended it 
and asserted it. It has been part and parcel of every policy proposed or adopted on 
all sides of this House. It was proposed in the early part of this attempt to recon¬ 
struct and build up States on the ashes of this rebellion. 

The President of the United States, in the first message he sent to this House, in 
the first year of his Administration, in answer and in refutation of the charge against 
his policy, that it would admit rebels upon this floor, set forth the very proposition 
now before this House, and called upon us to sustain it. I will read it from his very 
first message to this House: 

“In the admission of Senators and Representatives from all of, the States there can 
be no just ground of apprehension that persons who are disloyal will be clothed with 
the powers of legislation, for this could not happen when the Constitution and the 
laws are enforced by a vigilant and faithful Congress. Each House is made the judge 
of the election, qualifications, and returns of its own members, and may, with the 
concurrence of two-thirds, expel a member. When a Senator or Representative 
presents his certificate of election he may at once be admitted or rejected; or, should 
there be any question as to his eligibility, his credentials may be referred for inves¬ 
tigation to the appropriate committee. * If admitted to a seat it must be upon evi¬ 
dence satisfactory to the House, of which he thus becomes a member, that he 
possesses the constitutional and legal qualifications. If refused admission as a member 
for want of due allegiance to the Government, and returned to his constituents, they 
are admonished that none but persons loyal to the United States will be allowed a 
voice in the legislative councils of the nation, and the political power and moral 
influence of Congress are thus effectively exerted in the interest of loyalty to the 
Government of the United States and fidelity to the Union.” 

There is the identical recognition of authority; and after two years of experience 
on his part and on the part of Congress in an effort to reconstruct the rebel States he 
sent into this House, on the 2d of March last, a veto message in which he repeats, word 
for word, the very language I have read, and it so commended itself to my distin¬ 
guished friend from Indiana (Mr. Kerr) that he voted to sustain him in it, and so 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


29 


did all his political friends. Only three or four days since the distinguished Senator 
from Indiana (Mr. Hendricks), speaking of the law that prescribes the oath of office, 
used this language: 

“As I participated somewhat in the debate on Governor Thomas’s case, and as I 
was a member of the committee who reported upon that case, perhaps the Senator 
may refer to my views upon that question; and, if so, he does not correctly state 
them. My views upon the constitutionality of that law were expressed in the Senate 
some two or three years ago; but always when the question has been before the Sen¬ 
ate I have said this: That whilS the law remained upon the statute book I would not 
vote to allow any man to take his seat if in taking that seat he had to swear falsely 
in that oath; that I thought such a man ought not to be admitted.” 

Now, sir, what are the qualifications of a member? The Constitution says: 

“No person shall be a Representative who shall not have attained the age of 
twenty-five years and been seven years a citizen of the United States, and who shall 
not when elected be an inhabitant of that State in which he shall be chosen.” 

Here it ends. These qualifications a Representative must have. It speaks of no 
disqualifications. Do any exist? Can any be created by statute? 

I understand the gentleman from Indiana to say there is the beginning and the 
end of the matter. Suppose an insane man should present himself at the bar of this 
House, 25 years old, and seven years a citizen of the United States, and a citizen of 
Kentucky, the gentleman from Indiana would not administer the oath to him. 
Suppose he were non compos; I submit to the gentleman it would be an absurdity, 
and he would never say in the face of that absurdity, Admit him to take the oath of 
office. Suppose he attempted to bribe a judge; the act of 1793 states that conviction 
therefor shall disqualify him. Suppose he had been a member and was convicted 
of having received a bribe; the statutes of 1853 says that shall disqualify him from 
taking the seat, though he may be qualified in all other respects. 

The act of July 17, 1862, enacts as follows—its last two sections: 

“Sec. 2. And be it further enacted, That if any person shall hereafter incite, set on 
foot, or assist, or engage in any rebellion or insurrection against the authority of the 
United States or the laws thereof, or shall give aid or comfort thereto, or shall 
engage in or give aid and comfort to any such existing rebellion or insurrection, and 
be convicted thereof, such person shall be punished by imprisonment for a period 
not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the 
liberation of all his slaves, if any he have, or by both of such punishments, at the 
discretion of the court. 

‘ ‘ Sec. 3. And be it further enacted, That every person guilty of either of these 
offenses described in this act shall be forever incapable and disqualified to hold any 
office under the United States.” 

And yet the gentleman from Indiana (Mr. Kerr) says that it begins and ends with 
the three qualifications expressed in the Constitution. You will observe, Mr. 
Speaker, that this last statute is unlike the two elder ones I have cited. They make 
conviction work a disqualification. They say that anyone guilty—not convicted of, 
but guilty—of any of the offenses described shall be forever incapable and disquali¬ 
fied to hold any office under the United States. Why this change? Necessity, the 
public safety, is the answer. No State that would elect a man to this high trust who 
had been guilty of these offenses would ever convict him. Therefore if you waited 
for a conviction you would w'ait in vain. You would leave the door open, the traitor 
would enter, and the Government would fall. * * * 

Now, sir, to those of us who believe that that fourteenth article is already a part of 
the Constitution, there is an expressed inhibition upon this man contained in that 
article. I do not care to take the time of the House in discussing the question 
whether it is or is not a part of the Constitution. I plant myself upon the Consti¬ 
tution without amendment. I hold that in its lifeblood there is power to protect 
itself by all means not prohibited and adequate to the end. 

As showing that the House in acting in the Kentucky and other 
cases in the Fortieth Congress was not precipitate and wanting in 
deliberation, we call attention to the resolution adopted by the House 
of Representatives on the 22d of March, 1869. This was four years 
after the war and nearly two years after the Kentucky cases arose, 
when it may fairly be said that a deliberate judgment had been reached 
respecting the right of Congress in a proper case to exclude a member- 


30 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


On the 22d of March, 1869, the following was adopted as the per¬ 
manent rule of the House: 

Resolved , That in all contested-election cases in which it shall be charged by a 
party to the case, or a member of the House, that either claimant unable under the act 
approved July 2, 1862, entitled “An act to prescribe the oath of office, and for other 
purposes,” it shall be the duty of the committee to ascertain whether such disabil¬ 
ity exist, and if such disability shall be found to exist, the committee shall so 
report to the House and shall not further consider -the subject w ithout the further 
order of the House, and no compensation will be allowed by the House to any claim¬ 
ant who shall not have been entitled at the time of the election, and whose dis¬ 
loyalty shall not have been removed by act of Congress. 

This rule, it will be observed, is independent of the mere disqualifi¬ 
cation for disloyalty, but is intended to exhibit the matured determina¬ 
tion of the House of Representatives to insist not only upon the oath 
required by the act of J uly 2, 1862, but also that the person claiming 
the right to take the oath should show his right to do so. 

The test-oath act only required that he take the oath, but the House 
held that it had a right to inquire whether he had the capacity to take 
the oath, which was an exercise of an original power, not based upon 
any statute. 

WHITTEMORE CASE. 

Again, in the Forty-first Congress the House of Representatives 
asserted its right to exclude from membership a Representative-elect, 
with a perfect certificate and possessing all of the so-called constitu¬ 
tional qualifications. This is the case of Whittemore, from South 
Carolina. It must be remembered that Whittemore was a Republican 
and that he brought his certificate to a Republican House of Repre¬ 
sentatives. Previously, on the 24th da}^ of February, 1870, he had 
resigned in order to avoid a vote on a resolution of expulsion which 
had been reported to the House. 

It was charged against him that he had sold a cadetship, and that, 
therefore, he was unworthy to continue to be a member of the House. 
His resignation, however, prevented action upon the resolution of 
expulsion and the House contented itself with the adoption of a reso¬ 
lution of censure. Whittemore returned to his constituency, a special 
election was ordered, and he was reelected and returned to the same 
session of Congress with his certificate of election under the broad 
seal of the State of South Carolina. Objection was made by General 
Logan, and after some discussion the matter was postponed until June 
21. General Logan made a powerful speech, in which he asserted the 
right to exclude a man guilty of an offense such as Whittemore had 
committed. In this debate he said, among other things: 

It is said that the constituency had the right to elect such a member as they may 
think proper. I say no. We can not say that he shall be of a certain politics, or of 
a certain religion, or anything of that kind; but, sir, we have the right to say that he 
shall not be a man of infamous character. He is not merely a representative of the 
constituents who elect him, but his vote in the House is a vote for the whole nation. 
It is a vote for the people of the whole country, and every district in the United 
States has the same interest in his vote that his own district has. Hence, if Congress 
shall not have the power or authority or shall not have the right to exclude a man 
of that kind, then the rights of the people of the whole country may be destroyed by 
a district sending a representative who may be obtained to vote in a manner which 
may be destructive to the rights of the people. Are we to be told that Congress has 
no right to prevent anything of this kind because of the right of any constituency to 
send whomsoever they please? 


31 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 

It is not that the people shall not be represented. Not at all. It is this: That the 
people of the country have no right to destroy their own liberties by filling Congress 
with men, who, from their conduct, show themselves capable of the destruction of 
their Government. 

******* 

Congress, being the representatives of the whole people, are entitled to say that 
the rights^ of the whole country shall not be destroyed by one or more districts 
throwing in here a man, or set of men, capable of their destruction; and that, having 
knowledge of the facts, and the power to prevent the mischief by exercising the right 
of exclusion, they have a right to exercise that power, and thereby protect the inter¬ 
ests of the country, and to preserve instead of destroy the right of representation. 
******* 

For crime, sir, we have a right to proscribe a man. That is the ground I put it 
on. That is the ground on which I put it first, and that is the ground on which I 
put it now. We have a right, I say, to protect the interests of the country by exclud¬ 
ing men from these halls on the ground of crime. It is not a crime to be a Democrat 
or Republican, to be a Presbyterian or a Methodist, or a member of any other 
denomination; but, sir, it is a crime for a man to do what this man has done. And 
why ? Because the laws of our country denominate it a crime. It is made a crime 
by law. Hence my theory is based on the law, and is this, that in pursuance of the 
law, and in carrying out its principles, we must protect the country by protecting 
ourselves against crime and against criminals in this body. That is the gromid I 
took and the theory I stated. . 

The principal ground of objection was to immediate action, and the 
claim was made that the case ought to be sent to a committee to deter¬ 
mine Whittemore’s right to be sworn in. Logan replied that the House' 
was in possession of all the facts. He withdrew the demand for the 
previous question and the debate proceeded. Later on he said he sup¬ 
posed if there were not more than seventeen or eighteen who wanted 
to speak, of course it would not take much time, and that the House 
could vote down the previous question if it wanted more discussion. 
He said he did not care whether the House sustained the demand for 
the previous question or not. But the House seemed to be much more 
insistent than Logan, for the previous question was ordered and the 
vote on the main question was 130 to 24. No doubt some of those 
who voted in the negative were opposed to exclusion. 

But the most of them must have felt as did Mr. Farnsworth, who 
said: 

I do not know but that when this matter is properly investigated I shall also vote 
for excluding Mr. Whittemore from a seat, but I think it ought to be first investigated 
by a committee. 

The resolution in this case provided for the return of his credentials 
to Whittemore and his exclusion from the House, 

GEORGE Q. CANNON. 

The case of George Q. Cannon, who was excluded from the Forty- 
seventh Congress as a Delegate on the ground that he was a polyga¬ 
mist, on principle clearly sustains the proposition of exclusion of a 
Member. 

It is true that when excluded Cannon was merely a Delegate-elect 
from the Territory of Utah, and not a person elected to an office cre¬ 
ated by the Constitution. 

Nevertheless, we assert that on principle that case can not be differ¬ 
entiated from the case at bar. 

Allen G. Campbell was a candidate for Delegate from the State of 
Utah against George Q. Cannon in 1880. Campbell received about 10 


32 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


per cent of the votes cast, and the governor issued a certificate to him 
on the theory that Cannon was ineligible to be a Delegate in Congress. 
Campbell’s seat was contested by Cannon. The committee, in January, 
1882, made a very elaborate report. All but one united in declaring 
that Campbell, not having received a majority of the votes, was not 
entitled to a seat, and the dissenting member finally agreed with the 
majority, that whatever Cannon’s rights might be, Campbell ought not 
to be seated. 

A considerable majority of the committee further found that as 
Cannon was a polygamist he was ineligible and disqualified to be Dele¬ 
gate in Congress. At this time the Edmunds law had not been passed, 
and there was no statutory ground of ineligibility. 

Some members of the committee undertook to differentiate between 
the right of the House to exclude a Member and its right to exclude 
a Delegate, while other members insisted that, while there was a sharp 
distinction to be drawn between a Member and a Delegate, yet that in 
so far as the matter of ineligibility on the ground of polygamy was 
concerned the same principle would apply to both. 

This, then, was the condition of the Cannon case before the Edmunds 
law was passed. The committee was unanimously of the opinion that 
Cannon was duly elected a Delegate from the State of Utah, and there¬ 
fore that he was entitled to hold the certificate of election; that he 
stood in the attitude of a man appearing before the bar of the House 
with the proper certificate of the governor of the Territory of Utah 
and with no infirmity except that which went to his disqualification, 
namely, the fact of polygamy. 

Before the case was taken up in the House for discussion and action 
the Edmunds law was passed. Mr. Cannon in his speech says that 
there were some members of the House who had told him that while 
they would not have excluded him under the report of the committee, 
they would then vote to exclude him because of the provisions of section 
8 of the Edmunds Act; and Mr. Ranney, of Massachusetts, a member 
of the Committee on Elections, who had dissented from the majority 
report, declared that he felt compelled to vote in favor of the exclusion 
of Cannon because of the passage of that law. 

Nevertheless, the fact appears, and we believe it to be the just infer¬ 
ence from what occurred from the report of the committee and the 
debate on the floor of the House, that Cannon would have been 
excluded if the Edmunds law had never been passed. The vote in 
favor of allowing him his seat was 79, and against it 123. 

As evidencing the claim we make as to the meaning of this action of 
the House, we give the following characteristic extracts from the 
debate. Other members expressed like sentiments. 

Mr. Beltzhoover. But admitting for the purposes of this discussion what can not 
be maintained, that the same qualifications which entitle a Member of Congress to 
admission shall also entitle a Delegate to the same right, and I still hold that Con¬ 
gress has the right and power to say that a polygamist shall not be admitted as a 
Delegate. Under the high power inherent in every organization on earth to preserve 
its integrity and existence, Congress has the indubitable right to keep out of its coun¬ 
cils any person whom it believes to be dangerous and hostile to the Government. 

During the war almost the whole Congressional delegation from Kentucky were 
halted at the bar of the House, and on the objection of a member were not permitted 
to be sworn until it was ascertained whether they or either of them were guilty of 
disloyal practices. They had each every qualification usually required by the Con¬ 
stitution; they were duly and regularly elected and returned; they were sent by a 
sovereign State, holding all her relations in perfect accord with the Federal Govern- 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


33 


ment; but the House proceeded to inquire into each case, and not until a reasonable 
investigation was had were any of them admitted. The committee which had the 
matter in charge reported and the House adopted and laid down the following rule 
on the subject of all such cases: 

“Whenever it is shown by proof that the claimant has, by act or speech, given 
aid or countenance to the rebellion, he should not be permitted to take the oath, and 
such acts or speech need not be such as to constitute treason technically, but must 
have been so overt and public and must have been done or said under such circum¬ 
stances as fairly to show that they were actually designed to, and in their nature 
tended to, forward the cause of the rebellion/? 

In the case of John Young Brown, who was among the number, the committee 
almost unanimously reported against his right to admission, on the ground that he 
had written an imprudent and disloyal letter; nothing more. He had never com¬ 
mitted an act of treason. He was never arrested, nor tried, nor convicted. He 
denied all treasonable intent in the letter and made every effort in his power to 
explain and extenuate his offense. But seven out of nine members of the Committee 
of Elections of the Fortieth Congress reported that he “ was not entitled to take the 
oath of office or be admitted to the House as a Representative from the State of 
Kentucky.” This report was adopted by the House by a vote of 108 to 43. The 
minority report in that case made an argument against the action of the majority in 
almost the same words and on identically the same grounds that the minority of the 
Committee on Elections occupy in the case under consideration. It was argued that 
Mr. Brown had all the constitutional qualifications, and that Congress had no right 
to exact more; that in any event he had never been tried or convicted of treason, 
and unless convicted of the crime even treason was no disqualification. But Con¬ 
gress then laid down the rule above given, and never abrogated since, that in addi¬ 
tion to the ordinary constitutional requirements every man must be well disposed 
and loyal toward the Government before he can be admitted to Congress to aid in 
forming its policy and controlling its destinies. 

The act of July 2, 1862, providing what is known as the ironclad oath, added a 
new and marked qualification to those required of members of Congress prior to 
that time, and every member who has taken that oath since has submitted to the 
exaction of that additional qualification. The distinguished counsel who argued the 
case of Mr. Cannon before the Committee on Elections felt the force of this act, and 
the long-continued practice of Congress under it, and explained it as a war measure. 
He said: 

‘ ‘ The grounds upon which this law was vindicated, although not stated with much 
care or precision, are nevertheless clearly enough disclosed by the debates. It was 
enacted as a war measure. The ironclad oath was adopted as a countersign, which 
should, in time of war, exclude domestic enemies from the civil administration of the 
Government, in the same manner and for the same reason that the military counter¬ 
sign was employed to exclude those enemies from the military lines of the Army. 
It was enacted as a measure of defense against an armed enemy in time of war, 
and was as necessary and justifiable as any other war measure not specifically marked 
out in the text of the Constitution.” 

If Congress could, almost without challenge, provide and add such a distinct and 
imperative qualification, not for a Delegate, but for a Member of Congress in 1862, 
why may we not in 1882 ask a reasonable additional qualification for a Delegate from 
a Territory who does not come within the letter or the spirit of the Constitution? 
The act of 1862 was a bold and radical assertion of the doctrine of self-preservation 
on the part of Congress to maintain its integrity and the purity and loyalty of its 
counsels. The resolution recommended by the majority of the Committee on Elec¬ 
tions says to the people of Utah, You shall not abuse the privilege of representation 
which we allowed you on the floor of Congress by sending as your Delegate a person 
who adheres to an organization that is hostile to the interests of free government, 
and whose doctrines and practices are offensive to the masses of the moral people of 
the great nation which we represent. 

Mr. Miller. If all these things be true, Mr. Speaker; if that institution is anti- 
Republican, if it threatens the safety of this nation, why should it not be suppressed? 
Why should anyone holding those opinions and practicing those tenets be admitted 
to a seat in this House ? Is there no law or authority to prevent this ? Is it possible 
that a man who is a member of a political religious association which is hostile not 
only to the spirit of our laws, but also to the letter of the American laws and Con¬ 
stitution, can claim as a right under that Constitution a seat in the House ? 

This question is not a new one. In the case of John Young Brown, of Kentucky, 
who was duly elected a Representative from the Ninth Congressional district of that 

H. Rep. 85-3 





34 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


State, and claimed his seat by virtue of said election in the Forty-first Congress, the 
Committee on Elections decided that disloyalty disqualified him from taking his seat 
in the House. .And yet he had never taken an oath to support the Constitution of 
the United States which he had afterwards violated; he had never borne arms against 
the United States Government; he had never committed any overt act; all that 
he did was to declare in a public speech, 1861, and afterwards in a letter, that 
“Not a man or one dollar will Kentucky furnish Lincoln to aid him in his unholy 
war against the South. If this Northern Army shall attempt to cross our borders, 
we will resist it unto death, and if one man shall be found in our Commonwealth to 
volunteer to join them he ought and I believe he will be shot down before he S 
leaves the State.” 

Before the committee he admitted that he had used this language, but denied the 
authority of Congress to refuse him a seat in the House, inasmuch as the language 
did not constitute an offense or raise a disqualification under the Constitution. Mr. 
Dawes, the present Senator from Massachusetts, was chairman of the Committee on 
Elections. The political friends of Mr. Brown in Congress contended that even if 
he was guilty of disloyalty, he could not be refused a seat in the first instance; that 
all that could be done would be to admit him, and then if he was guilty of any 
crime that would disqualify him from holding his seat he could be expelled. 

Mr. Burrows. It is conceded on all hands that George Q. Cannon possesses all 
the constitutional qualifications required for a Representative in Congress. A Dele¬ 
gate certainly does not require other or higher qualifications. The single and simple 
issue in the case is whether this House has the constitutional power to refuse admis¬ 
sion to Mr. Cannon upon the ground that he is a polygamist. While I am in full 
accord with the views of those who hold that a Delegate is not a Member within the 
meaning of that word as used in the Constitution, and that our powers touching the 
exclusion of a Delegate are greater than those over a Member, yet in my view of the 
case I do not think the establishment of this principle necessary to the determination 
of the matter. I affirm that if a Representative from any of the States should demand 
admission to this House under the same circumstances as those surrounding Mr. 
Cannon it would be within our constitutional power to deny him admission. 

If that position be correct, the importance of the distinction between a Represent¬ 
ative and Delegate disappears. In standing upon this ground I am aware of that 
provision of the Constitution which prescribes the qualifications of Representatives, 
and that other provision which confers on each House the right to judge of the elec¬ 
tions and qualifications of its own members. Nor do I overlook the long and 
unbroken line of decisions that it is not within the constitutional power of Congress 
nor of the States to add to or in any way modify these constitutional requirements. 

But it will be observed that the Constitution does not undertake to specify those 
things which disqualify a person for membership. The doctrine is well settled that 
to entitle a person to a seat in this House he must not only possess those affirmative 
qualifications mentioned in the Constitution, to wit, residence and citizenship, but 
he must be free from those things which by common parliamentary law disqualify. 

In other words,' a Representative, though duly elected, a citizen, and of proper age, 
would not be entitled to membership though duly elected and possessing all the 
constitutional qualifications. We would deny admission to a person infected with a 
contagious disease, and would be justified in so doing. 

Should a member-elect, after he was chosen, be arrested and convicted of some 
infamous offense and punished by imprisonment in the State prison, would it be 
contended that if he should present himself at the bar of this House at the expira¬ 
tion of his term of imprisonment and demand to be received into membership, that 
it would not be within the constitutional power of this body to refuse him admis¬ 
sion? Instances of personal disqualification might be multiplied indefinitely. This 
is sufficient, however, to illustrate my point. 

The American people have long enough endured the shame of having seated in 
their high council a man who offends public decency, disturbs social order, defies 
national authority, and outrages the moral sense of all Christendom. Let the humil¬ 
iation end now and forever. 


ENGLISH PEECEDENTS. 

Some importance is given by the minority to the final action of the 
House of Commons in the Wilkes Case. We are asked to infer from 
some remark attributed to Edmund Burke that he had written “ finis” 
to the chapter on exclusions from parliamentary bodies. 



CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


35 


1 As to that, we have to say that after diligent search we find no 
cases where the House of Commons ever held or decided that it had 
not the right to exclude at the very threshold a member whose cer¬ 
tificate or credentials were perfect and uncontested, although the 
ground of exclusion was not a want of legal qualifications, and there 
are scores of cases since 1780 where it has claimed and exercised that 
right. We have found several cases where the House of Commons 
has declared that it possessed (and exercised) the right not only to 
exclude and suspend, but in a few instances to expel, a member for an 
offense unrelated to the functions of a member of Parliament, which 
offense was in a few instances committed before his election to Parlia¬ 
ment, but was held to be of a continuing character. 

The Houses of the American Congress have not accepted or followed 
these last-named precedents, due undoubtedly to the radical differ¬ 
ences between organization, jurisdiction, and powers of the English 
Parliament and the American Congress. The most striking of these 
differences, as stated by Mr. Cushing, are that in this country mem¬ 
bers of both branches of Congress are elected for specified terms and 
that the members of the House of Representatives are apportioned 
among and elected by their several constituencies—so far as possible— 
upon the principle of equality; whereas in England the House of 
Lords is composed of members who are not elected at all, but who sit 
as members during their lives by virtue of hereditary or conferred 
right, as' the nobility, or temporal lords, or of their appointment to 
places of high dignity in the church, as the archbishops and bishops, 
or lords spiritual; and the members of the House of Commons, though 
elected, are not apportioned among the several constituencies and 
elected upon the principle of equality or representation, but chiefly 
upon the principle of corporate or municipal right, and for no fixed 
period of time. 

Another important difference is that the existence and powers of 
the House of Commons rest largely on custom and tradition, aided, of 
late years, by statute provisions, whereas in the House of Represent¬ 
atives (as well as the Senate) these powers are founded in and for a 
great part regulated, limited, and controlled by a written Constitution 
and laws. 

It may be said that the House of Commons has uniformly taken the 
view that under the right to judge of the “ qualifications ” of its mem¬ 
bers—their legal election and return being conceded—it rests wholly 
within the discretion of that body to establish a new test or require¬ 
ment of qualification for membership, and that it may be either men¬ 
tal, such as for imbecility or insanity, physical, as for paralysis, or 
for grave offenses against criminal laws. 

Thus we see that the Senate and the House have taken the ground 
that they had the right to exclude for insanity, for disloyalty, and for 
crime, including polygamy, and, as we believe, there is no case in either 
the House or the Senate, where the facts were not disputed, in which 
either the Senate or House has denied that it had the right to exclude 
a man, even though he had the three constitutional qualifications. 
There is a large amount of debate, where opinions are given on both 
sides of the proposition, but as against that is the never-varying action 
of the two bodies themselves. 


36 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


STATUTORY PRECEDENTS. 

We present now the statutory declarations where disqualifications 
have been imposed. 

Section 21 of the act of April 30, 1790, is as follows: 

That if any person shall, directly or indirectly, give any sum or sums of money, 
or any other bribe, present, or reward, or any promise, contract, obligation, or secur¬ 
ity, for the payment or delivery of any money, present, or reward, or any other 
thing, to obtain or procure the opinion, judgment, or decree of any judge or judges 
of the United States, in any suit, controversy, matter, or cause depending before 
him or them, and shall be thereof convicted, and so forth, shall be confined and 
imprisoned, at the discretion of the court, and shall forever be disqualified to hold 
any office of honor, trust, or profit under the United States. 

Section 5499, which was passed in 1791, provides— 

That every judge of the United States who in any wise accepts or receives any sum 
of money or other bribe, etc., shall be fined and imprisoned, and shall be forever 
disqualified to hold any office of honor, trust, or profit under the United States. 

Is a member of Congress an officer f 

Before citing other acts of Congress, it is proper to discuss the 
question as to whether a member of Congress is an officer within the 
meaning of the statute. 

If a member of Congress is not an officer, if the qualifications of 
a member of Congress are only those named in the Constitution, 
then, of course, the makers of the Constitution meant that nobody 
could be made ineligible for Congress, either by law or b}^ the act of 
either body, even though laws passed immediately after the adoption 
of the Constitution made him ineligible for all other positions under 
the Government. 

Now, upon that proposition we make these observations, as to the 
meaning of the word “ office *” 

First. Undoubtedly under the Constitution, in one or two instances, 
the word office does not include Representative in Congress, as, for 
example, the last paragraph of section 6, article 1: 

No person holding any office under the United States shall be a member of either 
House during his continuance in office. 

In that case the words “holding any office” means an office other 
than a member, but the context is absolutely unmistakable, and no 
person is in danger of assuming, even if a member of Congress hold 
an office, that it meant to sav that no member of Congress shall be 
eligible to be a member of Congress. 

In the second place, the provision in the last paragraph of section 3, 
of article 2, relating to the duties of the President, that he shall com¬ 
mission all the officers of the United States, does not mean that he is 
to commission members of Congress, but he is himself an officer, and 
he does not commission himself, nor does he commission the Vice- 
President, who is also an officer under the United States. 

So also paragraph 2, section 1, article 2: 

But no Senator or Representative, or person holding an office of trust or profit 
under the United States, shall be appointed an elector. 

There the distinction is made “No Senator or Representative, or 
person holding an office of trust.” 

But under the Constitution the word “office” must include in certain 
of its provisions a Representative in Congress. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


‘37 


It is inconceivable that in the Constitution the word “office” never 
includes a member of Congress. • Look at the last paragraph of sec¬ 
tion 3, article 1. 

Judgment in cases of impeachment shall not extend further than to removal from 
office and disqualification to hold and enjoy any office of honor, trust, or profit under 
the United States. 

Is it conceivable that the framers of the Constitution meant that a 
man might be adjudged guilty in case of impeachment, and that that 
judgment of guilty could carry with it a judgment disqualifying him 
from holding any office, save only to be a Representative or Senator 
in Congress? 

Paragraph 8, section 9, article 1, is as follows: 

No title of nobility shall be granted by the United States, and no person holding 
any office of profit or trust under them shall, without the consent of the Congress, 
accept of any present, emolument, office, or title of any kind whatever, from any 
king, prince, or foreign state. 

Did the Constitution mean that Representatives and Senators in 
Congress could receive emoluments,. presents, office, or title from 
some king, prince, or foreign state, but no other person holding an 
office could without the consent of Congress % 

But in the next place, as to statutes. Whatever may be held to?be 
the meaning of the word u office” in the Constitution, it does not fol¬ 
low that the same meaning must be given to it in the statutes. We 
find a varying meaning in the Constitution, and we find a varying 
meaning in the statutes. The act of 1790 has always been assumed to 
cover members of Congress. 

Section 5500 of the Revised Statutes, originally passed in 1853, and 
now in substantially the form in which it was when originally passed, 
provides: 

Any member of either House of Congress who asks, accepts, or receives any money, 
or any promise, contract, undertaking, obligation, gratuity, or security for the payment 
of money, * * * either before or after he has been qualified or has taken his 
seat as such member, with intent to have his vote or decision on any question, 
matter, cause, or proceeding * * * pending in either House, * * * shall be 
punished by a fine, etc. 

Section 5502 is as follows: 

Every member, officer, or person convicted under the provisions of the two pre¬ 
ceding sections who holds any place of profit or trust shall forfeit his office or place, 
and shall thereafter be forever disqualified from holding any office of honor or trust 
or profit under the United States. 

This section applies explicitly to a member of Congress, and brings 
forfeiture of the office or place held by him. If “office” in this sec¬ 
tion does not include a member of Congress the word “place” must 
include him. 

Now, the word “office” in that concluding part of this section must 
refer to member. First, because the word “office” is used in the pre¬ 
ceding line as necessarily including a place that is held by a member. 
It can not fail to include that, for it refers to a “member” and what 
shall happen to him. In the next place, because it is not conceivable 
that the legislative body intended that the violation of that law by 
a member should forfeit the position that the member had and then 
not intend to disqualify him from being elected again as a member of 
the House when it disqualifies him from holding all other offices or 
places under the United States. 


38 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


But that is not the only statutory construction of the word office. 
It is still more explicitly declared in the test-oath act of Juty 2, 1862: 

That hereafter every person elected or appointed to any office of honor or profit 
under the Government of the United States, either in the civil, military, or naval 
departments of the public service, excepting the President of the United States, shall, 
before entering upon the duties of such office and before being entitled to any of 
the salary or other emoluments thereof, take and subscribe the following oath or 
affirmation: 

“I, A B, do solemnly swear (or affirm) that I have never voluntarily borne arms 
against the United States since I have been a citizen thereof; that I have voluntarily 
given no aid, countenance, counsel, or encouragement to persons engaged in armed 
hostility thereto; that I have neither sought nor accepted, nor attempted to exercise 
the functions of any office whatever under any authority or pretended authority in 
hostility to the United States; that I have not yielded a voluntary support to any 
pretended government, authority, power, or constitution within the United States 
hostile or inimical thereto. 

“And I do further swear (or affirm) that to the best of my knowledge and ability 
I will support the Constitution of the United States against all enemies, foreign and 
domestic; that I will bear true faith and allegiance to the same; that I take this 
obligation freely, without any mental reservation or purpose of evasion, and that I 
will well and faithfully discharge the duties of the office on which I am about to 
enter, so help me God.” 

Which said oath, so taken and signed, shall be preserved among the files of the 
court, House of Congress, or department to which the said office may appertain. 

Any person who shall falsely take the said oath shall be guilty of perjury, and on 
conviction, in addition to the penalties now prescribed for that offense, shall be 
deprived of his office and rendered incapable forever thereafter of holding any office 
of trust under the United States. 

It will be noticed that the only person required to take that oath is 
an officer, a person elected or appointed to any office of honor or 
profit, but it does not include in this phraseology a member. 

By reference to the concluding portion of the act it will appear that 
the word office does include a member of Congress. 

Which said oath so taken and signed shall be preserved among the files of the 
court, House of Congress, or department to which the said office may appertain. 

We not only have the use of the word “Congress” as indicating to 
what the word “office ” appertains, but also the universal, unquestioned 
construction by the acts of the Senate and of the House in compelling 
the test oath to be taken }^ear after year until it was repealed. Each 
house of Congress recognized that that oath was an oath to be taken 
by a Representative in Congress, notwithstanding the fact that the act 
passed made it apply only to a person elected or appointed to an office 
of honor or trust in the United States. 

We quote this section here, as well for the purpose of showing the 
Congressional precedents imposing a substantial qualification, or dis¬ 
qualification, upon the members of Congress, really substantial in its 
character, as the facts of history show, as to exhibit what is meant in 
the statutes b} r the word “office.” 

There are many other statutory provisions, passed from time to 
time since 1790, disqualifying for office of trust or profit under the 
United States persons guilty of the several crimes defined in those 
statutes. We do not refer to them specifically, but they are illus¬ 
trated by the statutes already quoted. 

It ought also to be said that section 8 of the Edmunds Act, whatever 
meaning may be given to it, evidences the legislative will to disqualify 
polygamists for office. It indicated the legislative purpose so aptly 
described by Justice Matthews, in the Ramsey case, when he said that 
no more cogent or salutary method could be taken than was taken by 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


39 


the Edmunds Act, which undertook to withdraw from all political 
influence those persons who showed a practical hostility to the devel¬ 
opment of a commonwealth based upon the idea of the union for life 
of one man and one woman in the holy estate of matrimony. 

The statutoiy declaration, if we may use that form of expression as 
applicable to the joint action of the House, coupled with the President’s 
approval, is only a more solemn declaration by both Houses of the 
principle that it has the right to exclude under certain conditions; that 
either House may do it. That very point was made in the discussion 
on the test oath in the Senate—that of course that law could not with 
certainty bind any succeeding Senate or any succeeding House, but 
that it was apparent that, so long as there existed any necessity for 
such an oath, and in the very nature of things the time would come in 
a few years when it would not be necessary, either House would respect 
its requirements and compel a submission to it; and that was the action 
of the Senate and House for nearly twenty } r ears. 

THE INELIGIBILITY CREATED BY THE EDMUNDS ACT. 

Having in mind that portion of this report in which we have here¬ 
tofore set out the status and condition of Brigham H. Roberts, we 
would inquire where the specific provisions of the Edmunds Act 
place him. 

Two facts appear as pertinent to this inquiry: 

First. That he was convicted in 1889 of unlawful cohabitation under 
that act, and served a term in the penitentiary therefor. 

Second. That he has been ever since 1885, and is now, a polygamist, 
as that word is used in section 8 of the Edmunds Act and defined by 
the Supreme Court of the United States in the cases of Murphy v. 
Ramsey (114 U. S., 15) and Cannon v. The United States (116 U. S. 55). 
Section 8 is as follows: 

No polygamist, bigamist, or any person cohabiting with more than one woman, 
and no woman cohabiting with any of the persons described as aforesaid in this sec¬ 
tion in any Territory or other place over which the United States have exclusive 
jurisdiction, shall be entitled to vote at any election held in any such Territory or 
other place, or be eligible for election or appointment to, or be entitled to hold, any 
office or place of public trust, honor, or emolument in, under, or for any such Terri¬ 
tory or place, or under the United States. 

Reading that act as applicable to this case, eliminating the irrelevant 
portions, it appears as follows: 

No polygamist shall be entitled to hold any office or place of public trust, honor, or 
emolument under the United States. 

In the Ramsey case, above referred to, a specific distinction is made 
between a polygamist and a person cohabiting with more than one 
woman. A polygamist is a person having a certain status respecting 
more than one Avoman. The condition, therefore, of a polygamist 
may be merely passive and requiring no affirmative act. To cohabit 
with more than one woman is, however, to do an affirmative thing. 
The result is that one who has two or more wives that he holds out to 
the world as such is a polygamist, wherever he may be, while one who 
cohabits with more than one woman is not cohabiting except in the 
place in which, of necessity, cohabitation must occur. 

In the Ramsey Case the court illustrated its definition of a polyga- 
mist as being a status or condition like any other qualification for 


40 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


elector, or for office, and declared that it was as if Congress had under¬ 
taken to make a married man ineligible. It would be the status in 
that event of being a married man which would create and continue 
the ineligibility. 

It therefore appears that the fact that a man is a polygamist is a 
fact that inheres in him and stays with him, and persists in remaining 
with him wherever he may go, so^ long as he is the possessor of more 
than one wife; and just as one who is a married man in the State of 
Maryland continues to be a married man if he leaves his wife at home 
and comes to the District of Columbia, so Mr. Roberts, being in the con¬ 
dition or status of a polygamist in the State of Utah, does not leave 
that status behind, nor does he dissociate himself from that status 
or cast oft' the garb of a polygamist by leaving his wives at home and 
traveling from that State into the District of Columbia. 

In the very nature of things the House of Representatives, wherever 
it is as a House of Representatives, is in a place under the exclusive 
jurisdiction of the United States; therefore when Roberts comes into 
the District of Columbia, in the status of a polygamist, he is ineligible 
under the Edmunds Act to hold am r office or place under the United 
States, and therefore ineligible to hold the position of member of the 
House of Representatives. 

The principles underlying the second main ground of disqualifica¬ 
tion, hereinbefore asserted, have already been fully discussed, but the 
ground is appropriately restated at this point. 

We assert before the House, the country, and history that it is 
absolutely and impregnably sound, not to be effectively attacked, 
consonant with every legislative precedent, in harmony with the law 
and with the text-books on the subject: 

That Brigham H. Roberts’s persistent, notorious, and defiant viola¬ 
tion of one of the most solemn acts ever passed by Congress, b} 7 the 
very body which he seeks now to enter, on the theory that he is above 
the law, and his defiant violation of the laws of his own State, neces¬ 
sarily render him ineligible, disqualified, unfit, and unworthy to be a 
member of the House of Representatives. And this proposition is 
asserted not so much for reasons personal to the membership of the 
House, as because it goes to the very integrity of the House and the 
Republic as such. 

THE COMPACT OF STATEHOOD. 

We come now to the third main proposition, that his election involves 
a breach of the compact and understanding by which Utah was admitted 
to the Union. 

Utah was admitted to the Union with the distinct understanding 
upon both sides that polygamous practices were under the ban of the 
church, prohibited and practically eradicated, both as a practice and 
a belief, and that they would not be renewed. 

The effort is made to alarm people upon this proposition that some 
similar objection might be made to representation from States in 
which the claim might be made that the right to vote was denied to 
some citizens. It is a sufficient answer to this to say that if such 
ground of complaint exists the Constitution specifically tells us what 
our remedy is; and declares precisely, in the fourteenth amendment, 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


41 


what we may do in any event when the right of suffrage is improperly 
denied. There is no possible escape from that position, even assum¬ 
ing that there was anything in the bogie man. 

But as to Utah, she was admitted on the express statement that the 
practice of polygamous living was interdicted by the church, was prac¬ 
tically abandoned by the people, and eradicated as a belief. Of course 
that sporadic instances of the violation of the law against cohabitation 
might occur no one doubted. 

The manifesto forbidding plural marriages and enjoining obedience 
to the laws relating thereto was issued by Wilford Woodruff, presi¬ 
dent of the Church of Jesus Christ of Latter-Day Saints, September 
25, 1890 

Some doubt having arisen as to whether that manifesto prohibited 
association in the plural marriage relation as well as the contracting of 
plural marriages as a ceremony, President Woodruff himself testified 
under oath as follows: 

Q. Did you intend to confine this declaration and advice to the church solely to 
the question of forming new marriages, without reference to those that were exist¬ 
ing—plural marriages?—A. The intention of the proclamation was to obey the law 
myself—all the laws of the land on that subject—and expecting that the church 
would do the same. 

Q. You mean to include, then, in your general statement, the laws forbidding 
association in plural marriages as well as the forming of new marriages?—A. What¬ 
ever there is in the law with regard to that—the law of the land. 

Q. Let me read the language, and you will understand me, perhaps, better. ‘ ‘ Inas¬ 
much as laws have been enacted by Congress forbidding plural marriages, * * * 
I hereby declare,” etc. Did you intend by that general statement of intention to 
make the application to existing conditions where the plural marriages already 
existed?—A. Yes, sir. 

Q. As to living in the state of plural marriage?—A. Yes, sir; that is, to the obey¬ 
ing of the law. 

Q. In the concluding portion of your statement you say, ‘ ‘ I now publicly declare 
that my advice to the Latter-Day Saints is to refrain from contracting any marriage 
forbidden by the laws of the land. ’ ’ Do you understand that that language was to 
be expanded to include the further statement of living or associating in plural mar¬ 
riage by those already in the status?—A. Yes, sir; I intended the proclamation to 
cover the ground—to keep the laws, to obey the law myself—and expected the people 
to obey the law. 

The significance of this statement by the spiritual head of the church 
is the more apparent when we remember that it was made but a short 
time before the question of the admission of Utah was debated in the 
House of Representatives. 

Is it to be an occasion for wonder, therefore, that the proclamation 
of amnesty issued by' President Harrison, January 4, 1893, should 
contain these words: 

Whereas it is represented that since the date of said declaration the members 
and adherents of said church have generally obeyed said laws and abstained from 
plural marriages and polygamous cohabitation; and 

Whereas by a petition dated December the 19th, 1891, the officials of said church, 
pledging the membership thereof to the faithful obeyance of the laws against plural 
marriages and unlawful cohabitation, applied to me to grant amnesty for past 
offenses against said laws. 

Is it strange that the House Committee on Territories in 1893 should 
report that polygamy is dead? ” And if that is not fully convincing, 
let the unprejudiced mind consider the following extracts from the 
debate in the House of Representatives on the admission of Utah,. 
December 12, 1893: 


42 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


Mr. Rawlins, the delegate from the Territory, seems to have hyp¬ 
notized the House by his eloquence. 

Mr. Morse. The twin relic of barbarism, polygamy, still lives. And while it does 
live and is in the ascendency I can never vote to admit Utah as a State of the Union. 

Mr. Rawlins. It was found in 1882 there were 2,225 adult male polygamists in the 
Territory of Utah. This report proceeds to say: 

“ It is not denied by the advocates of admission that polygamy is practiced in that 
Territory, but they claim it is not obligatory upon the members of the Mormon 
Church, but that it is gradually dying out until now there are comparatively few 
who are living in polygamous relations, and that this few are generally past the 
meridian of life. They claim that polygamous marriages have ceased to be solem¬ 
nized, that in the near future polygamy will have ceased altogether, and is even 
now practically dead, and that it is unjust to deprive the many of political rights 
because the comparatively few are violating the law in this regard.” 

The majority report of the committee in 1888 found that the practice of polygamy 
had been decreasing. It was claimed then by representatives of the Mormon people 
that polygamy had been forbidden by the Mormon Church, and they asserted that 
it was no longer in existence and would not revive. 

Mr. Morse. Will the gentleman allow me to ask a question right there? 

Mr. Rawlins. Yes, sir. 

Mr. Morse. Is it not a fact that prior to the election of the gentleman the Terri¬ 
tory of Utah sent here as their representative Mr. Cannon, who had six wives? 

Mr. Rawlins. No, sir. 

Mr. Morse. How t many wives did he have? 

Mr. Rawlins. You mean George Q. Cannon? 

Mr. Morse. He was a polygamist, was he not? 

Mr. Rawlins. That is ancient history, my friend. Mr. Caine has represented Utah 
here; he was my predecessor as the Delegate from the Territory. He served here 
ten years. Mr. Caine is not a polygamist. In 1882 Mr. Cannon, the polygamist you 
speak of, w r as excluded from his seat in Congress on account of his polygamy. 

Mr. Morse. But he represented the sentiment of those people all the same because 
they elected and sent him here. 

Mr. Rawlins. They elected him in years gone by. I am not denying, my dear 
friend, that in 1853 or 1860, or 1875 or 1880, polygamy was practiced in Utah. I am 
not denying that the people of that Territory elected polygamists to office in those 
old days. But the gentleman does not seem to know that the world does progress. 
(Applause.) There is nothing under the sun that is not changeable and subject to 
alteration. And that being so, the gentleman himself had better be careful. 

Governor West in his report, which I have in my hand, one of the chief men who 
■opposed it, perhaps more violently than any other, says: 

‘ ‘ The practice of polygamy has been abandoned by the church and the people. 
Polygamous marriages are forbidden by the authorities of the church. The people 
or church party has been dissolved, and the conditions existing in the Territory are 
now in nowise different from those in vogue in the States of the Union.” 

Now, when polygamy was yielded—as it was in fact yielded in 1887, when the 
question was eliminated—there was no reason any longer for the Mormon people to 
stand together. 

Now, Mr. Chairman, if I may be permitted to proceed, I would like to do so for a 
few moments without interruption. A case was tried in Idaho about 1886, in which 
a large number of witnesses were called who testified that polygamy in that Territory 
as early as 1884 had been forbidden by the church. Testimony was given in a case 
as early as 1888 that in Utah the Mormon authorities had in reality forbidden the 
practice of polygamy or the contraction of polygamous marriages as far back as 1886, 
and that after that time the practice had not existed. In 1888 the legislature of the 
Territory of Utah passed what is entitled “An act regulating marriages.” It will be 
found in 2 Compiled Laws of Utah of 1888, page 92. The second section of that act 
provides that marriage is prohibited and declared void w r here there is a husband or 
wife living from whom the person is not divorced. 

I understand well enough that there is a sentiment among certain members of the 
House that there ought to be in the enabling act a provision that the constitution of 
the State shall make polygamy punishable as a crime. There is no substantial objec¬ 
tion to that. In 1888 the people of the Territory of Utah proposed to insert such a 
provision in their constitution. The only objection that there is to it does not come 
from the Mormons or the Mormon people. The Territory has enacted stringent laws 
for the suppression of polygamy. There are other provisions to which I might refer 
relating to the methods by which these laws shall be enforced. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


43 


Now, the laws to which I have referred, enacted by the Territorial legislature, will 
by the operation of this provision of the enabling act, be continued in force unde 
the State government. It is true that the legislature of the State might, if it saw fit, 
repeal or modify those statutes; but polygamy would be unlawful. Polygamous mar¬ 
riages would be invalid, by force of these Territorial statutes upon the passage of this 
enabling act, without any provision in the constitution or in the enabling act other 
than what I have read providing against polygamy. 

Ths objection which I have, as I have already stated, to the definition of the 
offense of polygamy in the constitution, is that if that provision be adopted by Con¬ 
gress it will leave the matter in an unsatisfactory condition, for the reason that it 
will repeal, for instance, the statutes that I have read, enacted by the legislature of 
the Territory; because the definition of “polygamy,” as contained in the amend¬ 
ment of the minority, is inconsistent with these statutes. It rather tends, in my 
judgment, to prevent the exercise of the full authority on the part of the State pow¬ 
ers to prevent any revival of this obnoxious practice, and we do not intend—the 
people of Utah do not intend, in my belief—that it shall be revived, 
r There is,. I think, nobody in the "Territory at this time who has any desire what¬ 
ever to revive it. The leaders of the Mormon Church have solemnly professed and 
pledged their faith and honor and the faith and honor of the people—the entire peo¬ 
ple of the Mormon Church—that they will not revive this practice. They did it in 
the petition for amnesty addressed to the President, and all the leading Federal offi¬ 
cers in the Territory joined in a statement that they believed these men were sincere 
in asking the President to exercise his clemency in their behalf in accordance with 
the petition. 

There have been no Mormon polygamous marriages in Utah, so far as known, 
within the last eight or ten years, with few exceptions, and the public declaration of 
the Mormon Church is that there has been a discontinuance of the practice. The 
legislature has enacted every law required for the prevention of the revival of this 
practice, and in view of these facts no provision is necessary, in my judgment, 
although I am willing to consent that the amendment proposed by the gentleman 
from Vermont, which has been read, may be adopted. 

Now, the people of Utah have more at stake upon this question than gentlemen 
who represent other constituencies. I have traveled among these people, met 
them in every locality, discussed questions with them, civil and political; I know 
them as well as any man can know a people, because I have been with them all my 
life. I think I understand the sentiment that prevails among those who are upper¬ 
most in the councils of the political parties in the Territory of Utah, and who would 
be likely to dominate its affairs in case it be admitted as a State, and I am prepared 
to say upon my conscience that I believe these people can be safely intrusted with 
the full measure of self-government, which would be accorded under statehood. 

The people of the East are misinformed as to the character, education, and the 
intelligence of the people of Utah. I have in mind more than a hundred young men, 
born and educated in that Territory, who would grace the administration of any State 
in this Union on account of their ability, their learning, and their integrity. You 
will never have occasion to regret this act. By the admission of the Territory of 
Utah I believe her people, 240,000 in number to-day, and probably in three or four 
years, with statehood, 500,000, will send to these halls men who will not only do 
credit to the people they represent, but who will be of service in the affairs of this 
great nation. 

Now, Mr. Chairman, let me say that a change has taken place in Utah. How that 
change may be brought about may be interesting to gentlemen who are not familiar 
with its history. The making and enforcement of laws by Congress has had some¬ 
thing to do with it. There is no question about that. But there has also been develop¬ 
ing for many years past in the Territory of Utah a sentiment among the people who 
have been born and brought up there, which has had a great deal to do with this 
change. The eradication or discontinuance of polygamy is perhaps first due to 
external pressure, but still more largely to the efforts of people within the Mormon 
Church itself to bring about the reform of the organization in that respect. 

It should be borne in mind that but a very small proportion of the Mormon people 
have ever practiced polygamy. Those who did not practice it saw the evil conse¬ 
quences which followed from its practice, the unhappiness which it caused in families 
and that it rendered the people of Utah obnoxious to the prevailing sentiment of the 
age. Its practice disturbed the tranquillity, impeded th'e progress, retarded the growth, 
darkened the character, and destroyed the prosperity and happiness of the people. 

Thousands of non-Mormons have come to Utah and made their homes there. Our 
schools are free; attendance is required; they are nonsectarian. Education has been 
freely disseminated. Under such conditions"polygamy, having once been suppressed 
or extirpated, is not likely to be revived. 


44 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


Mr. Van Voojrhis, of New York. I would like to ask the gentleman whether there 
has been any revelation on the subject of polygamy recently, or does the head of the 
church claim there has been? 

Mr. Rawlins. The Mormon people claim that their duty with reference to the 
practice has been defined by a revelation. The present president of the Mormon 
Church, on the 26th of September, 1890, issued a manifesto in which he forbade the 
Mormon people from contracting marriages in violation of law. At a great conference 
of the Mormon people, ten or fifteen thousand being present, embracing all the vari¬ 
ous organizations of the church, it was moved that this declaration of the president 
of the church be regarded by the church as authoritative and binding, and that 
motion was unanimously adopted by the vote of that great congregation. 

The elders of the Mormon Church got up and said that this came to the people 
with all the force of a revelation, and was binding upon them, and many of the 
Mormon people have testified in court, when occasion has arisen when such testimony 
would be relevant, that they regard that as a revelation from Almighty God; that 
they no longer believe polygamy and its practice to be right, and in effect it is not 
only discontinued as a practice, but so far as the great mass of the Mormon people is 
concerned it is eradicated as a belief. But the people of Utah—I think I can speak 
for them on this question—mean, I believe, what they say. They are engaged in no 
scheme of fraud or treachery by which to deceive the nation. Having made this 
pledge, and on this pledge asked this action by the American Congress, I think I can 
say for them that they will stand by it though the heavens fall. 

Mr. Newlands. I think I express the unanimous sentiment of the people of the 
mining region and of the Pacific coast generally when I urge upon this House the 
admission of that Territory as a State. No apprehension is indulged in whatever 
with reference to the question of polygamy. The feeling of all who live in that 
region and who are familiar by personal contact with Utah and its institutions is that 
polygamy is practically dead. 

Mr. Oates. Mr. Chairman, I have long since been satisfied that polygamy as it 
existed in the Territory of Utah was crushed out and destroyed by the enforcement 
of the Edmunds-Tucker law. 

And so the enabling act was passed. Every incredulous member 
who cast doubt upon the sincerity of polygamists in Utah was whistled 
down the wind. Every legislator who doubted if the funeral of 
polygamy had really taken place, was laughed to scorn. Polygamy 
was dead! That was the battle cry, and on it the battle was fought 
and won. 

What would have become of the bill if Mr. Rawlins had declared 
that the State of Utah, just about to be born, would reserve the right 
to send a polygamist to Congress ? His bill would have been buried 
beneath an avalanche of votes beyond the hope of resurrection. 

The language of the enabling act is, u provided that polygamous or 
plural marriages are forever prohibited.” 

The understanding was that those words prohibited the practice of 
living in the status or condition of polygamous marriage. 

Bouvier’s Law Dictionary says: 

Marriage .—A contract made in due form of law by which a man and woman recip¬ 
rocally engage to live with each other during their joint lives, and to discharge toward 
each other the duties imposed by law on the relation of husband and wife. Marriage, 
as distinguished from the agreement to marry, the mere act of becoming married, is 
the civil status of one man and one woman united in law for life, for the discharge to 
each other and the community of the duties legally encumbent on themselves. 

“Marriage” is the legal status or condition of husbands and wives just as infancy is 
the legal relation >r condition of persons under age. (1 American and English 
Encyclopedia of Law, vol. 14, p. 470.) 

The act of marriage having been once accomplished, the word becomes afterwards to 
denote the relation itself. (Schouler on Domestic Relations, 22.) 

Marriage is the civil status of one man and one woman united in law for life under 
the obligation to discharge to each other and to the community those duties which 
the community, by its laws, holds incumbent on persons whose association is founded 
on the distinction of sex. (1 Bishop on Marriage and Divorce, 3.) 

Marriage is a personal relation arising out of a civil contract to which the consent 
of parties capable of making it is necessary. (Hart’s California Civil Code, 55.) 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


4-5 


Marriage is the union of one man and one woman so long as they shall both live 
together to the exclusion of all others by an obligation which during the lifetime 
the parties can not of their own volition or will dissolve, but which can be dis¬ 
solved only by the authority of the State. (19 Indiana, p. 57.) 

Senator Rawlins was asked before this committee the following 
question: 

Without reference to any assumed facts in this case, do you think that Congress 
would have admitted Utah to statehood if it had been predicted that Utah would 
send here in a few years a man as her Representative who was polygamously living 
with more than one wife? 

He answered: 

I do not think the Congress of the United States would have admitted Utah if 
they at that time had believed that a revival of the practice of polygamy would 
occur. 

It is not to be assumed from the fact that a rare or sporadic case of 
polygamous marriage occurred in Utah, or sporadic instances of unlaw¬ 
ful cohabitation had come to light, that that would be a violation of the 
agreement; but we take it that it is in the last degree a violation of the 
agreement or understanding when that State sends to Congress a man 
who is himself engaged in the persistent practice of the very thing the 
abandonment of which was the condition precedent to its admission; 
and that man the most conspicuous defier of the law and violator of the 
covenant of statehood to be found in Utah. 

As bearing on this, we here quote the manifesto issued a few da} T s 
ago by the Mormon Church and presented by Senator Rawlins to the 
Senate: 

In accordance with the manifesto of the late President Wilford Woodruff, dated 
September the 25th, 1890, which was presented to and unanimously accepted by our 
general conference on the 6th of October, 1890, the church has positively abandoned 
the practice of polygamy, or the solemnization of plural marriages, in this and every 
other State, and that no member or officer thereof has any authority whatever to 
perform a plural marriage or enter into such a relation. Nor does the church advise 
or encourage unlawful cohabitation on the part of any of its members. 

In other words, the Mormon Church has left it to us and not to the 
church to say what shall be done with Mr. Roberts. Is the House of 
Representatives to respond in any uncertain tone ? 

THE RIGHT TO EXPEL. 

Upon this alternative proposition that the proper method of pro¬ 
cedure is to permit the claimant to be sworn in, and then, if a two-thirds 
vote can be obtained to expel him, we desire to call attention first of 
all to what Stoiy says on that subject, section 83T: 

The next clause is, ‘ ‘Each House may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the concurrence of two-thirds, expel a 
member.” No person can doubt the propriety of the provision authorizing each 
House to determine the rules of its own proceedings. If the power did not exist, it 
would be utterly impracticable to transact the business of the nation, either at all, or 
at least with decency, deliberation, and order. The humblest assembly of men is 
understood to possess this power, and it would be absurd to deprive the councils of 
the nation of a like authority. But the power to make rules would be nugatory, 
unless it was coupled with a power to punish for disorderly behavior or disobedience 
to those rules. And as a member might be so lost to all sense of dignity and duly as to dis¬ 
grace the House by the grossness of his conduct, or interrupt its deliberations by perpetual 
violence of clamor, the power to expel for very aggravated misconduct was also indispensable, 
not as a common but as anultimate redress for the grievance. 


46 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


And again, section 838: 

What must be the disorderly behavior which the House may punish, and what pun¬ 
ishment other than expulsion may be inflicted, do not appear to have been settled 
by any authoritative adjudication of either House of Congress. A learned commen¬ 
tator supposed that members can only be punished for misbehavior committed dur¬ 
ing the session of Congress, either within or without the walls of the House, though 
he is also of opinion that expulsion may be inflicted for criminal conduct committed 
in any place. 

And after a reference to the Blount case Story says: 

It seems, therefore, to be settled by the Senate upon full deliberation that expul¬ 
sion may be for any misdemeanor which, though not punishable by any statute, is 
inconsistent with the trust and duty of a Senator. 

On the subject of expulsion, Rawle says, second edition, page 48: 

Both the Senate and the House of Representatives possess the usual power to 
judge of the elections and qualifications of their own members, to punish them for 
disorderly behavior, which may be carried to the extent of expulsion, provided two- 
thirds concur. It had not been yet precisely settled what must be the disorderly 
behavior to incur the punishment, nor what kind of punishment is to be inflicted. 
* * * 

Paschal on the Constitution, page 87: 

It seems to be settled that a member may be expelled for any misdemeanor which, 
though not punishable by any statute, is inconsistent with the trust and duty of a 
member. 

We do not need to call particular attention to the phraseology of 
the constitutional provision, nor do we think it very important to con¬ 
sider the evolution, from the standpoint of punctuation, through which 
that provision went in the constitutional convention. It now appears 
as following in the same sentence as the provision for disorderly 
behavior, with only the rhetorical separation of a comma from it. 

It thus appears that the language of the provision for expulsion, in 
the view of the ablest commentators, furnishes clear and cogent reasons 
for its construction, and that neither House ought to expel for any cause 
unrelated to the trust or duty of a member. 

This has been the uniform practice of both Houses of Congress. 

The case of Hiss v. Bartlett (3 Gray, 468) is cited as showing the 
unlimited power of a legislative body to expel. 

A casual reading of this case, which a careful reading confirms, will 
show that it directly sustains the position of the majority. 

As there was no constitutional provision in Massachusetts respecting* 
expulsion, the legislature of that State was, of course, clothed with all 
the powers incident to expulsion wdiich are inherent in a legislative 
body whose powers are not limited by a constitution. 

In addition to that, Hiss was expelled on the ground that his u con¬ 
duct on a visit to Lowell, as one of a committee of the house, was 
highly improper and disgraceful, both to himself and to the house of 
which he was a member.” 

Evei*}Thing said by the court had relation to such a state of facts. 
The case is one of expulsion for gross misconduct as a member and in 
the performance of his duty as a member. 

Neither House*has ever expelled a member for any cause unrelated 
to the trust or duty of a member. 

Both Houses have refused to expel where the proof of guilt was 
clear, but where the offense charged was unrelated to the trust or duty 
of a member. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


47 


HUMPHREY MARSHALL. 

The Senate in 1796 refused to expel Humphrey Marshall, of Ken¬ 
tucky. He was charged with the commission of a grave offense against 
the law of his State. The Senate refused to expel, on the ground that 
it had “ no jurisdiction” to do so. 

SMITH. 

In 1808 the Senate had the case of Smith, charged with complicity 
in the conspiracy of Aaron Burr. It refused to expel. 

WILLIAM N. ROACH. 

In 1893 proceedings were set on foot in the Senate looking to the 
expulsion of William N. Roach, a Senator from North Dakota. A 
long and exceedingly interesting discussion followed, but the pro¬ 
ceeding was abandoned without coming to a vote and Roach served 
out his term. Not a solitary precedent in the American Congress 
was cited in support of the proposition to expel. There was no 
precedent. 


HERBERT CASE. 

The difficulties attending expulsion are illustrated by the case of 
Herbert in the Thirty-fourth Congress. 

On the 15th of May, 1856, Mr. Knowlton introduced a resolution referring to the 
homicide of Thomas Keating, at Willard’s Hotel, on the 8th of the same month, by 
Mr. Herbert, a Representative from the State of California, and instructing the Com¬ 
mittee on the Judiciary to take the case into consideration, with power to send for 
persons and papers, and to report what action the House should take in the premises. 

The House refused to entertain the proposition. This all occurred at the first ses¬ 
sion of the Thirty-fourth Congress. At the third session a petition was sent to the 
House signed by 2,232 citizens of California, declaring their belief that, in the mur¬ 
der of Keating, Mr. Herbert had committed an act entirely without justification, had 
disgraced his high position, and that he could no longer satisfactorily represent the 
will of his constituents in the House of Representatives, and asking that, in the event 
of his acquittal by the court, he should be expelled from the House. This petition 
was referred to the Committee on Elections. On the 24th day of February, 1857, 
Mr. Colfax submitted the report of the committee. The committee, without making 
any recommendation, concluded their report in these words: 

“Your committee therefore report the character of the petition, the statements 
embodied in it, and the number of its signers, that the House may determine what 
action under the circumstances they may deem just to all concerned.” 

The House took no action whatever in the case, and Mr. Herbert continued to be 
a member of the House until the expiration of the Thirty-fourth Congress. He voted 
at the very last call of the yeas and nays on the 3d day of March, 1857. 

Herbert was acquitted in court of the crime charged. 

The next case in point in the House of Representatives is that of 


O. B. MATTESON. 

He had resigned in the Thirty-fourth Congress before a resolution 
of expulsion was passed. He was charged with a grave offense—an 
offense inconsistent with his trust and duty as a member. He was 
reelected to the Thirty-fifth Congress, and took his seat without ques¬ 
tion or objection. 

In the Thirty-fifth Congress a resolution of expulsion was proposed 
against him. The case went to a committee, and that committee, in a 
somewhat elaborate argument, reported against the expulsion of Mat- 


48 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


teson, on the ground that the Thirty-fifth Congress had no right to 
expel, because the offense was committed in the previous Congress, 
and did not relate to any violation of his trust or duty as a member 
of the Thirty-fifth Congress. 

The resolution reported was to the effect that it was inexpedient for 
the House to take any further action in regard to the resolution pro¬ 
posing to expel O. B. Matteson, and the House never did take any 
further action, excepting to lay the resolution on the table, and Mat¬ 
teson served through the Thirty-fifth Congress. 

BROOKS AND AMES CASES. 

In the next place we have the Brooks and Ames cases. They were 
cases in which charges had been made against Oakes Ames and James 
Brooks of corruption in connection with Credit Mobilier, and a spe¬ 
cial committee of five took the cases and reported in favor of expulsion. 
Thereupon the Judiciary Committee, which had taken up a resolution 
respecting Colfax, reported on the Ames and Brooks cases, with an 
elaborate argument setting out that the House had no right to expel, 
and gave many reasons, among others that it was an imposition of a 
qualification not fixed by the Constitution. They laid down the same 
proposition that can rightfully be urged against expulsion here, if the 
minorit} r of this committee is right. 

On February 18,1873, the special committee submitted an elaborate 
report, concluding with the following preamble and resolutions, viz: 

1. Whereas Mr. Oakes Ames, a Representative in this House from the State of 
Massachusetts, has been guilty of selling to members of Congress shares of stock in 
the Credit Mobilier of America for prices much below the true value of such stock, 
with intent thereby to influence the votes and decisions of such members in matters 
to be brought before Congress for action: Therefore, 

Resolved , That Mr. Oakes Ames be, and he is hereby, expelled from his seat as a 
member of this House. 

2. Whereas Mr. James Brooks, a Representative in this House from the State of 
New York, did procure the Credit Mobilier Company to issue and deliver to Charles 
H. Neilson, for the use and benefit of said Brooks, fifty shares of the stock of said com¬ 
pany at a price much below its real value, well knowing that the same was so issued 
and delivered with intent to influence the votes and decisions of said Brooks as a 
member of the House in matters to be brought before Congress for action, and also 
to influence the action of said Brooks as a Government director in the Union Pacific 
Railroad Company: Therefore 

Resolved, That Mr. James Brooks be, and he is hereby, expelled from his seat as a 
member of this House. 

Mr. Sargent, of California, offered the following substitute: 

Whereas by the report of the special committee herein it appears that the acts 
charged as offenses against members of this House in connection with the Credit 
Mobilier occurred more than five years ago, and long before the election of such per¬ 
sons to this Congress, two elections by the people having intervened; and whereas 
grave doubts exist as to the rightful exercise by this House of its power to expel a 
member for offenses committed by such member long before his election thereto, 
and not connected with such election: Therefore 

Resolved, That the special committee be discharged from the further consideration 
of this subject. 

Resolved, That the House absolutely condemns the conduct of Oakes Ames, a mem¬ 
ber of this House from Massachusetts, in seeking to procure Congressional attention 
to the affairs of a corporation in which he was interested, and whose interest directly 
depended upon the legislation of Congress, by inducing members of Congress to 
invest in the stocks of said corporation. 

Resolved, That this House absolutely condemns the conduct of James Brooks, a 
member of this House from New York, for the use of his position of Government 


CASE OF BRIGHAM H. ROBERTS, OF UTAH, 


49 


director of the Union Pacific Railroad and of member of this House to procure the 
assignment to himself or family of stock in the Credit Mobilier of America, a corpo¬ 
ration having a contract with the Union Pacific Railroad, and whose interests depended 
directly upon the legislation of Congress. 

They could not say that the things complained of were unrelated to 
these men as members, because at the time of their occurrence they 
were members not of the House that was then considering the resolu¬ 
tions, but of a previous House. The result was that the resolutions 
did not refer to any claim that these facts had no relation to Ames 
and Brooks as members. The resolution , declaring in its preamble 
the grave doubt of the House as to its rigid to expel under those cir¬ 
cumstances, was substituted for the original resolution by a vote of 115 
to 11CK Thereupon a motion was made to lay the preamble of the 
substitute on the table—that is to say, the proposition was made to 
vote down the principle declared in that substitute that the House had 
no jurisdiction. 

That motion was lost by a vote of 79 to 123, and Mr. McCullough 
was the only person who, in the progress of the vote, gave his reasons 
for voting no, and he said he voted no because he doubted the power 
of the House to expel. Thereupon a motion was made to adopt the 
preamble, and that motion failed to carry by a vote of 98 to 115, a very 
much smaller majority than that by which the motion to lay it on the 
table was lost. The inference from these two votes is that as to this 
particular proposition there was uncertainty in the minds of the mem¬ 
bers, and they were not ready to make a definite declaration. There¬ 
upon the House by an overwhelming majority adopted the resolutions 
of condemnation. 

The sum and substance of it all is, that the House in the Ames and 
Brooks case, where, as we apprehend, history and all authorit} r declare 
the proof of guilt was practically conclusive, refused to adopt the report 
of the committee in favor of expulsion, and merely censured the offend¬ 
ing- members. 

As indicating the views of eminent and able members of the House 
on this question, we quote the following from the debate on the Ames 
and Brooks case: 

Mr. McCrary. Now, sir, in this case, if the facts which the committee have found 
are true, the purpose and object of these corrupt transactions was to secure influence 
not alone in the Fortieth Congress, but in subsequent Congresses as well. The 
Union Pacific Railroad Company and the Credit Mobilier expected to require, per¬ 
haps, not positive legislation, but they desired to prevent unfriendly legislation in 
all these Congresses. I have no doubt that they would have been glad if they had' 
the power to have prevented this present investigation. 

Without discussing the general question of jurisdiction, about which I confess I 
have some difficulty, I am perfectly satisfied to rest the jurisdiction of the House in 
this case upon the ground which I have just stated. 

Mr. Farnsworth. Mr. Speaker, since I first examined the subject of the right of 
the House of Representatives to expel a member under that provision of the Consti¬ 
tution which authorizes each House to “punish its members for disorderly behavior, ’ ’ 
and “with the concurrence of two-thirds expel a member,” my conviction has been 
growing stronger and stronger that this House has no jurisdiction of an offense com¬ 
mitted by a person before he was a member of this body. I do not propose to 
enlarge upon that subject. In reference to this question, I concur in the conclusion 
of the Judiciary Committee, whose report in another case was yesterday read to the 
House. 

Now, Mr. Speaker, in my opinion this House has no right to go back for six years 
and expel a member because of acts committed at that period. 

H. Rep. 85-4 



50 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


[February 26,1873.] 

* Mr. Bingham. Gentlemen in this connection have referred to Story. I do not 
propose to read at any great length from him. I am not unmindful of the fact that 
this lamented man, so full of learning, often crowded into his pages so much of the 
text of others with whose writings he was familiar that a doubt often arises as to his 
true and certain meaning. But I do not hesitate to say that every thoughtful man in 
America who reads the text of Story will come to the conclusion that upon the 
question under consideration this House has no power whatever over any member of 
this body except the power expressly given by the text of the Constitution and by 
the laws of the United States passed under the Constitution. Story says, quoting 
from the Constitution: “Each House may determine the rules of its proceedings, 
punish its members for disorderly behavior.” Punish its members, not the members 
of another House, but punish its members; not a member of the Fortieth Congress; 
not a member of the Thirty-ninth Congress; not a member of the Thirty-eighth Con¬ 
gress ; ‘ ‘ punish its members for disorderly behavior, and with the concurrence of 
two-thirds expel a member.” * * * “No person can doubt the propriety of the 
provision authorizing each House to determine the rules of its own proceedings. If 
the power did not exist it would be utterly impracticable to transact the business of 
the nation either at all, or at least with decency, deliberation, and order. The humblest 
assembly of men is understood to possess this power; and it would be absurd to 
deprive the councils of the nation of a like authority. But the power to make rules 
would be nugatory unless it was coupled with a power to punish for disorderly 
behavior or disobedience to those rules.” 

Now, how could a man who was not a member of your body at all be guilty of 
misbehavior as a member of it or of disobedience to your rules before he came to be 
a member of it? It is useless to waste words upon such a proposition. Story goes 
on: “And as a member might be so lost to all sense of dignity and duty as to disgrace 
the House by the grossness of his conduct, or interrupt its deliberations by perpetual 
violence or clamor, the power to expel for very aggravated conduct was also indis¬ 
pensable, not as a common but an ultimate redress for the grievance.” 

From whom? From a member of this body. For what? For misconduct, for 
crime if you please, too grievous to be put up with or borne while he was a member' 
of that body. Gentlemen have referred to Rawle. Rawle refers to the same pro¬ 
vision of the Constitution, and says: 

‘ ‘ It has not been precisely settled what must be the disorderly behavior to incur 
punishment, nor what kind of punishment is to be inflicted; but it "can not be doubted 
that misbehavior out of the walls of the House or within them when it is not in 
session would not fall within the meaning of the Constitution.” 

There is an authority cited by the committee. I think it goes too far, but it does 
not sustain the committee. I stand upon the ground that a member of this body 
during his membership may be expelled for any crime he may have committed 
against the laws of his country or against the rules and authority and dignity of this 
House after his election to this, not to another House. And that is as far as, under 
the obligations of my oath, I dare go. And I venture the opinion that when the 
question comes to be understood by the American people, that will be as far as any 
House of Representatives dare go. 


GEORGE Q. CANNON. 


But we think a more significant case still than that—significant in 
more senses than one—was the case of Cannon, in the Forty-third 
Congress. George Q. Cannon had the certificate as Delegate from 
Utah. A feeble effort was made to prevent his being sworn in. There 
was no evidence that he had ever violated any law, and nothing more 
than a moral objection could be urged against him. Maxwell contested 
his seat on the theory that Cannon was ineligible, and that he. Max¬ 
well, being the only eligible candidate, was therefore elected. His 
pretensions on that ground were promptly disposed of against him. 

The committee brought in a report that Cannon was elected and re¬ 
turned. This was in May, 1874. The minority of the committee 
insisted that he was entitled to the seat which he occupied. The reso¬ 
lution of the minority was adopted by a small majority, as against the 
resolution that he was elected and returned. Some of the best, strong- 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


51 


est, and ablest men in the House voted no on that proposition; among 
them, of those who are now in public life, were Burrows, Fiye, Har- 
mer, and Hoar. 

The suggestion was made that the proper proceeding was to expel, 
if Cannon was a polygamist; and the House permitted itself to believe, 
since Cannon was already in his seat, that that was the proper course. 

A committee was at once appointed to examine into the question as 
to whether or not he was a polygamist, in order that they might expel 
him. 

That committee was appointed in May, 1874, and on the 21st day 
of January, 1875, it reported in favor of what they called exclu¬ 
sion, but what was, of course, expulsion, because he was already in. 
They found he was a polygamist. The minority report, which accom¬ 
panied the majority report, opposed expulsion on three grounds. 

First. Because the House had in the preceding session declared that 
Cannon was entitled to a seat. 

Having declared that he was entitled to his seat, it would be incon¬ 
sistent to expel him, since there was no intervening circumstance 
which changed his status at the date of this report from his status 
when the House confirmed his right to a seat. 

Second. That when Utah was created as a Territory it was a Mor¬ 
mon community, and Congress knew it and had a right to expect that 
it would send a Mormon delegate. It, therefore, had no right to 
protest now that the Mormon had come. 

Third. We here quote the language of the minority— 

But a graver question than those we have considered is the question whether the 
House ought, as a matter of policy or to establish a precedent, expel either a Dele¬ 
gate or a Member on account of alleged crimes or immoral practices unconnected with 
their duties or obligations as Members or Delegates, when the Delegate or Member 
possesses all the qualifications to entitle him to his seat. 

There is more along the same line in this report. 

Three weeks later this case was called up for consideration. Mr. 
Laughridge, of Iowa, raised the question of consideration, and the 
House refused to take it up by an overwhelming vote, only 21 mem¬ 
bers voting in favor of it. 

Thus we see that the House, which thought in May that it might 
purify itself or protect itself just as well by expulsion at a later day, 
discovered that the very action which it had taken was turned into a 
weapon against it when it undertook at that later day to bring about 
expulsion, and Cannon sat until the end of his term. Will history 
repeat itself? It took the House several years to rid itself of Cannon. 
Will it be as deliberate in this instance? 

SCHUMACHER AND KING. 

This was a case where Schumacher and King, members of the House, 
were charged with corruption in connection with the China mail service. 

The report of the Committee on the Judiciary was filed August 9, 
1876. 

In declaring against the right of expulsion it said: 

Your committee are of opinion that the House of Representatives has no authority 
to take jurisdiction of violations of law or offenses committed against a previous Con¬ 
gress. This is purely a legislative body and entirely unsuited for the trial of crimes. 
The fifth section of the first article of the Constitution authorizes “each House to 
determine the rules of its proceedings, punish its members for disorderly behavior, 


52 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


and, with the concurrence of two-thirds, expel a member.” This power is evidently 
given to enable each House to exercise its constitutional function of legislation unob¬ 
structed. It can not vest in Congress a jurisdiction to try a member for an offense 
committed before his election; for such offense a member, like any other citizen, is 
amenable to the courts alone. Within four years after the adoption of the first ten 
amendments to the Constitution, Humphry Marshall, a Senator of the United States 
from Kentucky, was charged by the legislature of his State with the crime of perjury, 
and the memorial was transmitted by the governor to the Senate for its action. The 
committee to whom it was referred reported against the jurisdiction of the Senate, 
and say: 

‘ ‘ That in a case of this kind no person can be held to answer for an infamous crime 
unless on a presentment or indictment of a grand jury, and that in all such prosecu¬ 
tions the accused ought to be tried by an impartial jury of the State or district wherein 
the crime shall have been committed. Until he is legally convicted, the principles of 
the Constitution and of the common law concur in presuming that he is innocent. 
And they are also of the opinion that, as the Constitution does not give jurisdiction to 
the Senate, the consent of the party can not give it, and that therefore the said memo¬ 
rial ought to be dismissed.” 

The minority report did not combat the position of the majority 
in so far as this case is concerned, as the following extract will show: 

That the only question now presented to the House is the question of jurisdic-. 
tion, w 7 hich question arises under the last clause of section 5 of Article I of the 
Constitution: 

“Each House may determine the rules of its proceedings,punish its members for 
disorderly behavior, and, with the concurrence of two-thirds, expel a member. ’ ’ 

. It will be seen that there are no words of limitation on the power to expel, which 
seems to have been left to the good sense and discretion of each House. In other 
words, does not the Constitution refer rather to the fitness of the member to hold the 
office, resting on considerations of public justice and policy, than to the time of his 
election? Yet the undersigned do not deny but that there are limitations on the 
power of this House arising from the circumstances of particular cases, and the rela¬ 
tions of this House to the constituency of an accused member; therefore, as will be 
seen, the undersigned need not go further in this case than to assert jurisdiction, 
because the offenses complained of were not known to the constituents of the mem¬ 
bers in question until after their election. 

If the House takes the action which the minority of the committee 
insists it ought to take, it will, for the first time in its history, part with 
a most beneficent power which it has often exercised—a power that 
ought rarely to be exercised, but which the House has never declared 
it did not possess. 

Mindful of the gravity of the question and realizing the responsi¬ 
bility imposed upon us, we recommend the adoption of the following 
resolution: 

Resolved, That under the facts and circumstances of this case, Brig¬ 
ham H. Roberts, Representative-elect from the State of Utah, ought 
not to have or hold a seat in the House of Representatives, and that 
the seat to which he was elected is hereby declared vacant. 

Robert W. Tayler. 
Charles B. Landis. 

Page Morris. 

Romeo H. Freer. 

Smith McPherson. 

Samuel W. T. Laniiam. 

Robert W. Miers. 


56th Congress, ) HOUSE OF REPRESENTATIVES, j Rep’t 85, 
1st Session. f ) Part 2. 


VIEWS OP THE MINORITY. 

Tlie undersigned members of tlie special committee appointed to in¬ 
vestigate and report upon the prima facie and final right of Brigham 
H. Roberts to a seat in the House as the Representative from Utah, 
being unable to agree with the conclusions of the committee as to the 
constitutional questions involved, very respectfully submit our views. 

Finding that Mr. Roberts has been and is now a polygamist, unlaw¬ 
fully cohabiting with plural wives, if the House of Kepresentatives 
is for that reason of the opinion that he ought not to be a member 
thereof, what course should it rightfully pursue under the Constitution, 
the supreme law of the land—exclude him or expel him"? If he is to be 
excluded, it must be because he is for such reason legally ineligible or 
disqualified. The purpose is to consider the question of constitutional 
right, not of arbitrary power, as it is conceded that the House has that 
power to exclude, with or without reason, right or wrong. The exercise 
of such a power, without constitutional warrant, would simply be brute 
force, a* tyrannous exercise of power, unreviewable by any tribunal. 

The Constitution, article 1, section 5, provides that— 

Each House shall he the judge of the elections, returns, and qualifications of its 
own members. 

As to qualifications of Representatives, it provides: 

No person shall be a Representative who shall nob have attained to the age of 
twenty-five years and been seven years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State in which he shall be chosen. 
(Constitution, article 1, section 2.) 

Is it seriously contended that tbis House can of its own motion, by 
its own independent action, create for the purposes of this case a legal 
qualification or disqualification? This House alone can not make or 
unmake the law of the land. Before any one of its acts can become law 
it must be concurred in by the Senate and approved by the President, or 
passed by two thirds of each House over his veto. It is quite clear that 
the House, by its independent action, can not, if it would, make for this 
case any ‘disqualifying regulation that would have the force of law. 

The qualifications being negatively stated in the Constitution, it is 
said that Mr. Roberts is ineligible under the provisions of the act of 
March 22, 1882, section 8, known as the Edmunds law, viz: 

Sec. 8. That no polygamist, bigamist, or any person cohabiting with more than 
one woman, and no woman cohabiting with any of the persons described as afore¬ 
said in this section, in any Territory or other place over which the United States 
have exclusive jurisdiction, shall be entitled to vote at any election held in any such 
Territory or other place, or be eligible for election or appointment to or be entitled 
to hold any office or place of public trust, honor, or emolument in, under, or for any 
such Territory or place, or under the United States. 

The existence of the disqualification in this act is predicated not upon 
a conviction of or as a punishment for the offenses of polygamy or 
unlawful cohabitation, but simply as incident to the existence of those 
conditions. 


53 







54 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


FIRST. 

It is a very grave question as to whether Congress can, by a law 
duly enacted, add to the qualifications negatively stated in the Consti¬ 
tution. There is no decision of the United States Supreme Court 
directly or indirectly construing this provision. There is no decision of 
any State court directly in point. In Ohio v. Covington (29 Ohio Stat., 
102), relied upon, the court were passing upon the right of the defend¬ 
ants to hold the offices of police commissioner and member of the board 
of health for the city of Cincinnati. The constitution provided that— 

No person shall he elected or appointed to any office in this State unless he pos¬ 
sesses the qualifications of an elector. 

The court distinctly held that— 

The defendants, as members of the board of police commissioners * * * are 

officers for whose election and appointment no provision is made in the Constitu¬ 
tion of the State or of the United States— 

And were therefore such as the legislature had, by the express pro¬ 
visions of the Constitution, authority to create. When the legislature 
created the offices in question, it attached to them the condition that 
each officer should be— 

A resident citizen for three years of the city in which he shall be appointed, and 
able to read and write the English language. 

The offices in question were creatures of the statute, and not of the 
constitution. It is familiar law that whatever office the legislature 
creates it can create with such conditions, limitations, qualifications, and 
restrictions as it sees fit to impose; and this was all that it was necessary 
for the court to say in that case in upholding the validity of the stat¬ 
ute. It is true that it did go further than that, further than the case 
required, and held that no implication arose, from the negative lan¬ 
guage of the constitution, that other qualifications could not be added 
by the legislature. In so far, however, as the opinion goes beyond the 
requirements of the case, it certainly is doubtful authority. It should 
be stated that this case has been fully approved in the recent case of 
Mason v. State (58 Ohio St., 54). 

The case of Darrow v. People (8 Colo., 120), relied on, is also subject 
to the same criticism as State v. Covington, as the office there consid¬ 
ered was that of alderman, the creature of the statute. 

The case of People v. May (3 Mich., 598) is relied upon to support the 
proposition that statutory additions may be made to the constitutional 
qualifications. We submit that so far as that case is an authority it is 
directly in point against the contention. In that case a layman had 
been elected to an office designated in the constitution as “a prosecut¬ 
ing attorney.” The question was whether any person not a lawyer was 
eligible to the office. It was objected that to hold that eligibility was 
confined to the legal profession would be adding a qualification in viola¬ 
tion of the constitution. 

The court held that they must give to the words “a prosecuting 
attorney ” such a construction as would be consistent with the sense 
in which they were used, and that the obvious intention of the consti¬ 
tution was that the office should be held by an attorney at law. 
Certainly not a very violent inference. This did not add a qualifica¬ 
tion; merely held that one already existed. But the court did not 
stop there, or leave their position as to the right to add qualifications 
open to doubt, as they emphatically said: 

We concede to the fullest extent that it is not in the power of the judiciary or 
even the legislature, to establish arbitrary exclusions from office, or annex qualifica- 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


55 


tions thereto, when the Constitution has not established such exclusions, nor annexed 
such qualifications. But it is begging the question to assume that the act of con¬ 
struing the Constitution has that effect (610). 

It is not perceived bow this case gives any aid or comfort to those 
who promote the contention adverted to. 

The remark of the court in McCulloch v. Maryland (4 Wheaton, 
416), purely a dictum made by way of illustration, when discussing the 
powers reasonably to be implied from the concise and general provisions 
of the Constitution, necessary, appropriate, and plainly adapted to 
effectuate its purposes, that— 

He would be charged with insanity who should contend that the legislature 
might not superadd to the oath directed by the Constitution, such other oath of 
office as its wisdom might suggest— 

does not impress us as entitled to much weight in construing a provision 
of the Constitution which the court was not considering and to which the 
doctrine “that a government intrusted with such ample powers, on the 
due execution of which the happiness and prosperity of the nation so 
vitally depends, must also be intrusted with ample means for their 
execution,” can have little, if any, application. This seems to us more 
obvious when it is noted that the oath prescribed by the Constitution is 
simply to support the Constitution. In the line of the doctrine stated 
it might be said that an oath to faithfully discharge the duties of the 
office was a proper “means for their execution,” and one reasonably 
involved in the implied powers. 

It is suggested that the existence of the clause “but no religious 
test shall ever be required as a qualification to any office or public trust 
under the United States,” which is found in Article VI of the Consti¬ 
tution, in a paragraph relating wholly to oaths, has a direct tendency 
to show that the previous paragraph in Article I, section 2, prescribing 
qualifications, was not intended to be exclusive, inasmuch as this para¬ 
graph in Article VI is said to add a qualification which is entirely 
inconsistent with the idea that the x> r i° r paragraph was exclusive. 
Reflection, however, leads us to the conclusion that this paragraph in 
Article VI has no proper connection with or relation to the paragraph 
in Article I, section 2. We think the word “qualification” in connec¬ 
tion with “ religious test ” is used in an entirely different sense from 
that in which the word “qualification” is used in Article I, section 5. 
It is clearly applied to and is a description of the “ religious test,” and 
must be construed in connection with that phrase, no “religious test 
* * * as a qualification.” The clause is found in a paragraph which 

relates solely to the oath to be administered. 

Qualification, when used in discussing the elements which a member- 
elect must possess in order to be entitled to enter upon the office, is 
synonymous with eligibility. This is substantially the definition of 
legal lexicographers—Bouvier, Rapalje, and Anderson. “ The recog¬ 
nized legal meaning in our constitutions” of the word “test” “is derived 
from the English test acts, all of which related to matters of opinion, 
and most of them to religious opinion. Such has been the general 
understanding of framers of constitutions.” (Attorney-General v. De¬ 
troit Common Council (58 Mich., 217); Anderson’s Dictionary of Law, 
“Test;” “Test act;” “Test oath”) 

The English test acts (25 Geo. II, c. 2) required persons holding office 
within six months after appointment to take the oath of allegiance and 
supremacy, and subscribe a declaration against transubstantiation, and 
receive the sacrament according to the usage of the Church of England. 
The qualification of a “ religious test” thus prohibited relates clearly 


56 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


to something ‘‘required’ 7 to be done by an officer when entering upon 
or after having entered upon the office, and not to qualifications or ele¬ 
ments of eligibility which he must possess or .disqualifications or elements 
of ineligibility which lie must not possess before he can enter upon the 
office. Qualification or disqualification, eligibility or ineligibility is a 
status that either does or does not exist at the time of entering upon 
the office. The qualification of a religious test has no existence as a 
status; it is not a status, it is simply a condition to be performed. No 
member can change his status as to the elements of eligibility or quali¬ 
fication as defined in Article I, section 2, at the time of entering upon 
the office; but if the qualification of a religious test existed every mem¬ 
ber could, if his conscience were sufficiently elastic, comply with the 
test. One is predicated upon the past and the other upon the future. 
One relates to things done or not done; the other to things to be done. 

An examination of the constitutional history of this clause fully cor¬ 
roborates this view. The last paragraph of Article VI, with the excep¬ 
tion of the clause as to the test oath and the word “affirmation 71 (which 
was added by amendment), is substantially Article XX of the first 
draft of the Constitution, as reported by the committee of detail 
August 6, 1787. (The Madison papers, containing debates on the Con¬ 
federation and Constitution, vol. 5, p. 381; Elliot’s Debates.) 

The clause in question first appears in the proceedings August 20, 
1787, and was introduced by Mr. Pinckney, as an independent propo¬ 
sition to be referred to the committee of detail, and then read : 

No religions test or qualification shall ever be annexed to any oath of office under 
the authority of the United States. (Ibid., 446.) 

That the word “qualification” as here used related to the oath, and 
to nothing else, is too clear for argument, and that it was not used 
in the sense in which it was used in Article I, section 5, is likewise 
clear. This conclusion is emphasized by the fact hereafter noted that 
it was at one time proposed, by an independent constitutional provi¬ 
sion, to confer upon the legislature express authority to add one qualifi¬ 
cation. The effort failed, and it is hardly to be supposed that the Con¬ 
stitution makers would do indirectly by this clause what they had 
directly decided not to do. Later, when Article XXAvas being consid¬ 
ered, Mr. Pinckney moved as an amendment to the article his original 
proposition in precisely the language in which it now appears in the 
Constitution. (Ibid., 498.) 

There is nothing in the proceedings to indicate that by a change in 
the phraseology he intended any change in its meaning. The selection 
by him for amendment of the clause as to the oath, and not that relat¬ 
ing to the qualification, is in harmony with this view. 

For these reasons it seems to us that the clause relating to religious 
tests can serve no legitimate purpose in enlarging that prescribing the 
elements of eligibility. 

With the exception of Barker v. The People (20 Johns. (X. Y.), 457), 
which is affirmed in Barker v. The People (3 Co wen, 630) and Kogers 
v. Buffalo (123 X. Y., 173), hereinafter discussed, we do not find any 
case construing a similar constitutional provision which sustains the 
right to add qualifications. 

Among the elementary writers, Throop on Public Offices, section 73, 
says: 

The general rule is that tbe legislature has full power to prescribe qualifications 
for holding office, in addition to those prescribed by the Constitution, if any, pro¬ 
vided that they are reasonable, and not opposed to the constitutional provisions, or 
to the spirit of the Constitution. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 57 

But lie cites no authority to sustain his text as to constitutional 
offices. 

Cushing (Law and Practice of Legislative Assemblies, p. 195, sec. 
477) says: 

To the disqualifications of this kind, may he added those which result from the 
commission of some crime, which would render the member ineligible, 

And cites no authority. 

Burgess, in his work on Political Science and Constitutional Law, 
without giving any authority, says: 

I do not think that either of these bodies can add anything, in principle, to these 
constitutional qualifications. Certainly the Commonwealths can not add anything 
in principle or in detail. They have attempted to do so, but Congress has always 
disregarded these attempts. If the Congress can add anything by law, or if either 
House can do so through the power of judging of the qualifications of its members, it 
must be something already existing, by reasonable implication, in these constitu¬ 
tional qualifications. For example, I think it certain that either House might reject 
an insane person, i. e., might require sanity of mind as a qualification; or might 
exclude a grossly immoral person, i. e., might require fair moral character as a quali¬ 
fication. (Vol. II, p. 52.) 

The Commonwealths can not add to or substract from these qualifications. On the 
other hand, the Congress may, by law, or either House may, in the exercise of the 
power to judge of the qualifications of its members, make anything a disqualifica¬ 
tion that is reasonably implied in the constitutional provisions in regard to this 
subject. Certainly they may make the corrupt use of his powers by a legislator a 
disqualification; and they have done so. (Vol. II, pp. 52, 53.) 

The case of Whittemore, in the Forty-first Congress, is suggested as 
a legislative precedent for the right to exclude. We have examined 
that case with care, and we feel bound to say that we do not think it 
entitled to any weight as a precedent. The argument upon which it 
was based shows the action of the House to have been unwarranted and 
ill advised in excluding Whittemore. The only speeches made in sup¬ 
port of the proposition were by Mr. Logan. He does not in any way 
refer to the one great legal question involved, as to whether Congress, 
to say nothing of the House, acting alone, had the power to add to the 
qualifications specified in the Constitution, and that question was not 
raised during the debate, although at that time (1870) several State 
courts, one at least, had discussed it, People v. Barker having been 
decided in 1824. 

The House had, apparently, never heard that there was such a ques¬ 
tion. The only provision of the Constitution that could possibly justify 
the action of the House, that constituting the House the judge of the 
u election returns and qualifications of its own members,” was not 
referred to directly or indirectly, and if the debate is the criterion, the 
House acted without any reference to it whatever. The clause stating 
the qualification was incidentally referred to once. Indeed, they appar¬ 
ently acted upon an entirely different provision, that does not relate to 
exclusion or determining eligibility or qualifications, and Mr. Logan 
distinctly based his case upon it when he says: 

I base my opinion, first, upon the Constitution of the United States, which author¬ 
izes Cougress to prescribe rules and regulations for the government of their members, 
and provides that by a two-thirds vote either House may expel anyone of its mem¬ 
bers without prescribing the offenses for which either House may expel. 

He then proceeded to make this gratuitous and unwarranted assump¬ 
tion : 

This being the theory with which I start out, I then assume that where the House 
of Representatives has power to expel for an offense against its rules, or a violation 
of any law of the land, it has the same power to exclude a person from its body. 


58 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


Without giving any attention to the legal distinctions involved, or 
even referring to the constitutional right of passing upon qualifications, 
or adverting to the fact that exclusion is the act of a majority and 
expulsion of two-thirds, he begs the whole question and assumes their 
identity. He quotes a statute w hich makes a disqualification to hold 
office absolutely dependent upon a conviction, and then assumes it 
disqualified Whittemore, although there had been no conviction. He 
admits there was no Congressional precedent for the action which he 
proposed. He cites the Wilkes case in the English Parliament as a pre¬ 
cedent, when, as he states it, that case was directly in point against 
him. Wilkes, he says, was elected four successive times to the same 
Parliament, three times without opposition and the fourth time against 
an opposing candidate. Three times he was expelled. The fourth 
time his opponent was seated. Neither time, according to his state¬ 
ment, was Wilkes excluded. 

Just how that case could be an authority for excluding as against 
expelling Whittemore we can not see. These considerations (and many 
more could be suggested), in view of the fact that the House, under Mr. 
Logan’s lead, absolutely refused to allow any committee to examine, 
for the information of the House, the legal questions involved or to 
have the case relerred to any committee—though such a course was 
desired by such men as Poland of Vermont, Farnsworth of Illinois, 
and Schenck and Garfield of Ohio—and would not allow Schcnck and 
Garfield to be heard on the law for even ten minutes each, deprive this 
case, in our opinion, of all weight as a precedent. 

As might perhaps be expected, Mr. Logan’s statement of the Wilkes 
case was by no means accurate. It is extremely interesting, as well as 
important, to note that the whole history of that case is a striking con¬ 
demnation of the position of Mr. Logan. While the record is not full, 
and the distinction between the power of exclusion and that of expulsion 
was not emphasized in argument, the result makes it the conspicuous 
proposition. On the occasion of Wilkes’ third election the House of 
Commons adopted this resolution: 

That John Wilkes, esq., having keen in this session of Parliament expelled this 
House, was, and is, incapable of being elected a member to serve in the present Par¬ 
liament. (Cavendish, Debates, vol. 1, p. 231.) 

In opposing the adoption of this resolution, Edmund Burke said: 

I rise to obtain some information upon this great constitutional point. You are 
going to make a disqualification of a member to sit in Parliament; you are going to 
make a disqualification contrary to the unanimous opinion of a whole county. 
Words have been thrown out by the noble lord importing that this is the law of 
Parliament. Is that, sir, a fact? Is this the law of Parliament? I wish to have 
that law established on the ground which establishes all laws. Has it acts of Par¬ 
liament? It has none. Has it records ? Has it custom? I have not heard a variety 
of precedents used. (Ibid., p. 231.) 

Here it will be seen that of all who took any part in that debate, the 
only man who lives in history made the specific point that the House 
of Commons was adding, in violation of law, by its own action, a dis¬ 
qualification in Wilkes’ case. The resolution which declared Wilkes 
ineligible in effect was adopted by an overwhelming majority February 
17, 1769. Before this he had been twice expelled. May 3, 1782, when 
reason had resumed its sway and the House was no longer overawed 
by power, a resolution revising in emphatic terms a portion of its prior 
action in the Wilkes case was adopted. It is significant that it did not 
attempt to impeach the propriety or validity of the action of the House 
in twice expelling Wilkes, but it wholly reversed its action in establish- 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 59 

ing a disqualification and then excluding him therefor. The resolution 
adopted on the motion of Wilkes himself reads: 

That the said resolution [that of February 17, 1769, declaring him incapable of 
being elected] be expunged from the journals of this House, as being subversive of 
the rights of the whole body of electors of this Kingdom. (Hansard, vol. 22, p. 1409.) 

That the significance of this resolution and its vital importance, as 
declaring the lack of power of one branch of the legislature to add a 
qualification, was fully appreciated at that time, clearly appears from 
the discussion on its adoption. While Fox conceded the principle, he 
thought the resolution unnecessary, as it would not have the force of 
law and would not change the doctrine. The Lord-Advocate agreed with 
Mr. Fox and spoke principally to the u idea of excluding anyone from a 
seat in that House by a mere resolution of the House, and without the 
concurrence of the other branches of the legislature. Such a resolution 
would be contrary to all law, and to the very spirit of the constitution, 
according to which no one right or franchise of an individual was to be 
taken away from him but by law.” (Ibid, p. 1411.) 

May, in his able work on Parliament, very clearly states the law when 
he says: 

“But, notwithstanding their extensive jurisdiction in regard to elections, the 
Commons have no control over the eligibility of candidates, except in administra¬ 
tion of the laws which detine their qualifications.” (May on Parliament, p. 53.) 

Thus at that early day was the distinction between exclusion and 
expulsion emphasized by the House of Commons, and the first legisla¬ 
tive precedent established against the pretended right to add a dis¬ 
qualification for office, in violation of law. 

So far as the Edmunds Act, which does not require a conviction for 
disqualification, goes, the case of Barker v. The People (3 Cowen, 68b) 
is distinctly adverse to the conclusion of the majority of the committee. 
The court were passing upon the validity of a statute authorizing a 
judgment rendering a party ineligible to office on a conviction for 
sending a challenge to fight a duel, and the court sustained the judg¬ 
ment in the following expressive language: 

Whether the legislature cau exclude from public trusts any person not excluded 
by the express rules of the Constitution, is the question which I have already exam¬ 
ined; and according to my views of that question, there may be an exclusion by law, 
in punishment for crimes, but in no other manner and for no other cause. 

Again— 

I therefore conceive it to be entirely clear, that the legislature can not establish 
arbitrary exclusions from office, or any general regulation requiring qualifications 
which the Constitution has not required. 

It appeared that no qualification whatever in respect to members of 
the assembly was required by the Constitution, and the court said, 
arguendo, that a regulation requiring a member of the assembly to be 
a freeholder u would be an infringement of the Constitution.” There 
was a blank, not even a negative provision. 

We do not understand that Eogers v. Buffalo (123 N. Y., 173), in any 
way affects the authority of Barker v. The People, supra, but on the 
other hand cites it with approval, and clearly distinguishes from it 
the case which they were deciding. They were construing a statute 
which created a board of civil-service commissioners, and after citing 
and assenting to Barker v. The People, supra, said (p. 184): 

But, in our judgment, the legislation which creates a board of commissioners con¬ 
sisting of two or more persons, and which provides that not more than a certain pro¬ 
portion of the whole number of commissioners shall be taken from one party, does 
not amount to an arbitrary exclusion from office, nor to a general regulation requir¬ 
ing qualification not mentioned in the Constitution. 


60 CASE OF BRIGHAM H. ROBERTS, OF UTAH. 

The opinion thus clearly eliminated the constitutional question as to 
eligibility, and determined the case upon another ground. 

Sound reason does not sustain this claimed right to exclude. If the con¬ 
struction contended for is admitted it must be conceded that the power of 
adding qualifications is unlimited, as there is nothing in the Constitution 
which circumscribes it. The suggestion in Barker v. People that the only 
power to add is in case of a conviction of crime is purely arbitrary and 
gratuitous, and absolutely no constitutional authority is given therefor. 
The rigid confinement by the court of the right to break away from 
the Constitution to a conviction for crime must have been in the nature 
of expiation, a satisfying of the judicial conscience for the departure 
thus made from the Constitution. If the power exists, it must be 
unlimited, and, therefore, while you can not take from or narrow the 
two elements first specified, you have unlimited power to add to them. 
For instance,unless a man is at least 25 years of age he is not eligible, 
therefore the Constitution does not undertake to say that a greater age 
may not be required. In fact, the necessary inference is that only the 
minimum limit as to age has been established, and the legislature has 
unlimited power to add to that qualification, and hence may require all 
Bepresentatives to be 50 years of age. The same course could be pur¬ 
sued with reference to the seven years’ citizenship clause: you can not 
act within the domain to which the Constitution has confined itself. 
Outside of it, you can do anything. We can not indorse any such 
doctrine, or help to work it into a decision of the House in the case 
now under consideration. 

The consequences just suggested are the logical result of the theory, 
and while the illustrations are extreme they are the best test of the 
principle. Would anyone feel justified in asserting that any such 
change in the age qualification was either contemplated or is possible? 
Yet it must have been, and must be, if the argument is sound. 

Inasmuch as the argument of John Bandolpli in 1807 is thought to 
be able, ingenious, and persuasive upon this clause, we have taken occa¬ 
sion to examine it, and find him expressing “ extreme surprise” because 
the Committee on Elections had so construed this clause as to restrict 
“the States from annexing qualifications to a seat in the House of Bep¬ 
resentatives. He could not view it in that light. Mark the distinction 
between the first and second paragraphs. The first is affirmative and 
positive.” Then he draws a contrast between the affirmative and nega¬ 
tive provisions. He conceded that if the Constitution had read in the 
affirmative it would have settled the question of qualification and been 
exclusive. He does not appear to have gone for light to the proceed¬ 
ings of the Federal Convention. The House in that case, Barney v. 
McCreery (Digest Election Cases, vol. 1, page 157), decided against his 
contention, and his proposition has long been obsolete. 

The whole case of the right to add qualifications is based upon the 
fact that such qualifications as are prescribed are negatively expressed. 
The juxtaposition of the affirmative and negative clauses, it is said, has 
some significance. It does not appear that any of the courts’ elemen¬ 
tary writers or lawyers that have had occasion to insist upon this, have 
ever availed themselves of the debates in the Federal Convention for 
the purpose of ascertaining the intention of the framers of the Consti¬ 
tution. While this precaution has not hitherto been observed, common 
fairness and a due regard for a thorough investigation require that 
these great men, whose handiwork has so well withstood the assaults 
of time, should now and upon this important question be allowed to 
speak for themselves. An inquiry as to the origin of this clause will 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


61 


not only be interesting and instructive, but possibly determining. This 
course is stated bj r Cooley to be proper. (Cooley’s Constitutional Lim¬ 
itations, p. SO.) 

And Story, in his great work on the Constitution, makes constant 
use of the debates in the Federal Convention. 

In the report of the committee of detail giving the first draft of the 
Constitution, August 6, 1787 (Madison Papers, etc., vol. 5, p. 37<>), the 
paragraph in question appears as an independent section, i. e., section 
2, Article IV, and reads: 

Sec. 2. Every member of the House of Representatives shall be of the age of 
twenty-five years at least, shall have been a citizen of the United States for at least 
three years before his election, and shall be at the time of his election a resident of 
the State in which he shall be chosen. 

It is significant that this section is affirmative, and is therefore exclu¬ 
sive, as is conceded, in its character. It is important to inquire whether 
the change in phraseology was made for the purpose of changing its 
legal effect. That it was understood by the framers of the Constitution 
to be exclusive will, we think, clearly appear. The first consideration 
which indicates this is the incorporation in the same draft of the Con¬ 
stitution of section 2 of Article VI, which reads: 

Sec. 2. The Legislature of the United States shall have authority to establish 
such uniform qualifications of the members of each House, with regard to property, 
as to the said Legislature shall seem expedient. 

The inference that the framers of this draft must have understood 
that section 2 of Article IV was exclusive, and that in order that the 
legislature might have any power at all over qualifications it was nec¬ 
essary to confer it by a later and specific provision, is imperative and 
obvious. The debates confirm this idea. 

Madison opposed the proposed section 2, Article VI, “ as vesting an 
improper and dangerous power in the legislature. The qualifications 
of elector and elected were fundamental articles in a republican gov¬ 
ernment, and ought to be fixed by the Constitution. If the legislature 
could regulate those of either, it can by degrees subvert the Constitu¬ 
tion. 

“A republic may be converted into an aristocracy or oligarchy, as well 
by limiting the number capable of being elected, as the number author¬ 
ized to elect. In all cases where the representatives of the people will 
have a personal interest distinct from that of their constituents, there 
was the same reason for being jealous of them as there was for relyiug 
upon them with full confidence when they had a common interest. 
This was one of the former cases.” 

Gouverneur Morris moved to strike out “with regard to property,” 
in order, as he said, “to leave the legislature entirely at large”—pre¬ 
cisely what is now claimed without any such constitutional provision. 
This was objected to by Mr. Williamson oil the ground that should “a 
majority of the legislature be composed of any particular description 
of men—of lawyers, for example—which is no improbable supposition, 
the future elections might be secured to their own body.” 

Mr. Madison further observed that “the British Parliament possessed 
the power of regulating the qualifications both of the electors and the 
elected, and the abuse they had made of it was a lesson worthy of our 
attention. They had made changes in both cases, subservient to their 
own views of political or religious parties.” (Madison Papers, etc., vol. 
5, p. 404.) 

This article was not agreed to. 


62 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


Note the significance and primal importance of Mr. Madison’s asser¬ 
tion that “the qualifications of electors and elected were fundamental 
articles in a republican government, and ought to be fixed by the Con¬ 
stitution,” as otherwise the legislature might “subvert the Constitu¬ 
tion.” 

His insistence upon these grounds prevented the adoption of the pro¬ 
vision that only conferred this pdwer upon the legislature in one par¬ 
ticular, and the convention thus evidently adopted his views as to the 
exclusiveness of the provisions of Article IV, section 2. 

Again, when the original proposition which resulted in Article IV, 
section 2, was under discussion prior to the draft reported by the com¬ 
mittee of detail, Mr. Dickinson opposed the section altogether, 
expressly because it would be held exclusive, saying he “was against 
any recitals of qualifications in the Constitution. It was impossible to 
make a complete one; and a partial one would, by implication, tie up the 
hands of the legislature from supplying omissions.” (Ibid., p. 371.) 

Mr. Wilson took the same view, saying, “Besides, a partial enumera¬ 
tion of cases will disable the legislature from disqualifying odious and 
dangerous characters.” (Ibid., 373.) 

When this section in the draft was under discussion, after “three” 
had been striken out and “ seven” inserted as to citizenship, Alexander 
Hamilton moved “that the section be so altered as to require merely 
citizenship and inhabitancy,” and suggested that “ the right of deter¬ 
mining the rule of naturalization will then leave a discretion to the leg¬ 
islature on the subject which will answer every purpose.” (Ibid, p. 411.) 

Here it is clear that, as Hamilton construed this provision, without 
this latitude as to naturalization, the legislature had no discretion or 
power. From the affirmative language of this provision, then, as it 
stood in the report of the committee of detail, and the understanding 
of the framers of the Constitution, it is clear that it was exclusive. 
This section was not changed to the negative form by amendment, or 
as the result of any debate. In its affirmative form with other sections 
that had been finally acted upon, and their construction and terms 
definitely settled, it was referred to a committee “ to revise the style of 
and arrange the articles which had been agreed to by the House,” and 
this committee consisted, among others, of Mr. Hamilton, Mr. Gouver- 
neur Morris, and Mr. Madison. (Ibid, p. 530.) 

This committee had no power to make any change in the legal effect 
of any of the clauses submitted to them. They were simply “to revise 
the style of and arrange.” Certainly, with his very pronounced views, 
Mr. Madison would not have made a change in Article IV, section 2, 
that would, in his opinion, have placed it within the power of the leg¬ 
islature to “subvert the Constitution.” 

Yet, when the committee reported the Constitution as it now stands, 
Article IV is rearranged so as to be included in Article I, and the origi¬ 
nal affirmative section 2 of Article IV appears in the negative form as 
the second independent paragraph of Article I, somewhat changed, it 
is true, but in no sense connected with or dependent upon the preced¬ 
ing paragraph, which, with an improvement in phraseology, is section 1 
of Article IV of the draft. This reference to the original sources of 
information, we submit, deprives the argument sought to be derived 
from the juxtaposition of all significance. (Ibid, p. 551).) 

An examination of the finished work discloses the fact that the rear¬ 
rangement and changes in phraseology by the committee were exten¬ 
sive. The object unquestionably was to make the arrangement more 
orderly and lucid and the language more perspicuous and felicitous. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


63 


To hold that in any particular any change was intended to be made in 
the legal effect is to impeach the integrity of men whose characters are 
of the most illustrious in our history. To assert that they unwittingly 
made such changes is a much more grievous assault upon their intelli¬ 
gence and ability. 

Moreover, we are not left to inference as to how this clause in its 
present form was interpreted by the most eminent of the framers of the 
Constitution. The Federalist, as is well known, was published while 
the Constitution was undergoing public discussion, and while it was 
being ratified by the States. It had been ratified by six States only 
when the numbers of the Federalist hereafter referred to appeared. 
The author of No. 52 evidently assumes that all of the qualifications of 
representatives had been “very properly considered and regulated by 
the convention.” 

He says : 

The qualifications of the elected, being less carefully and properly defined by the 
State constitutions, and being at the same time more susceptible of uniformity, have 
been very properly considered and regulated by the convention. A Representative 
of the United States must be of the age of 25 years; must have been seven years a 
citizen of the United States; must at the time of his election be an inhabitant of the 
State he is to represent, and during the time of his service must be in no office under 
the United States. Under these reasonable limitations, the door of this part of the 
Federal Government is open to merit of every description, whether native or adoptive, 
whether young or old, and without regard "to poverty or wealth or to any particular 
profession of religious faith. 

If the learned author had supposed that any limitations in addition 
that might appeal to the caprice of a legislature could be added, he 
would hardly have used the term “these reasonable limitations,” as he 
evidently did, as descriptive of all of the limitations to be imposed. 
In No. 57 a general reference to this clause is made, which evidently 
proceeds upon the idea that the qualifications to be required are stated 
in the Constitution. It reads: “Who are to be the objects of popular 
choice! Every citizen whose merit may recommend him to the esteem 
and confidence of the country. No qualification of wealth, of birth, of 
religious faith, or of civil professions is permitted to fetter the judgment 
or disappoint the inclination of the people.” 

How could he know that, unless the Constitution settled the qualifi¬ 
cations! The authorship of these two numbers is in doubt between 
Madison and Hamilton. Hamilton is conceded to be the author of No. 
60, and with many no authority is greater than his; and this, so far as 
his authority goes, settles it beyond cavil. He says: 

The truth is that there is no method of securing to the rich the preference appre¬ 
hended but by prescribing qualifications of property, either for those who may elect 
or be elected. But this forms no part of the power to be conferred upon the National 
Government. Its authority would be expressly restricted to the regulation of the 
times, the places, the manner of elections. The qualifications of the persons who 
may choose or be chosen, as has been remarked upon other occasions, are defined 
and fixed in the Constitution and are unalterable by the legislature. 

This uuequivocal declaration was made after the negative form of 
expression had been adopted; made concerning the provision as it now 
exists in the Constitution. It is not contended that the Federalist was 
a determining factor in securing the ratification of the Constitution, 
though it was undoubtedly published for that purpose. So far, however, 
as this clause weighed in the public mind, as this is the only construction 
that appears to have been placed upon it, it may be inferred that this 
construction was adopted by the States which afterwards ratified. 

In the light of these facts it is to be deplored that exigencies arise 
which are supposed to justify a construction in direct conflict with the 


64 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


intention and interpretation of those who framed and assisted in rati¬ 
fying the Constitution. It seems clear that the negative form of expres¬ 
sion has no interpretive significance, and as it affords no support for the 
proposition which involves the right to add qualifications, that proposi¬ 
tion must fall with the erroneous construction upon which it is based. 

The great weight of the other authorities sustains this conclusion. 

In Thomas v. Owens (4 Maryland, 223), the court said: 

Where a constitution defines the qualifications of an officer, it is not within the 
power or the legislature to change or superadd to it, unless the power be expressly, 
or by necessary implication, given to it. 

And in Page v. Hardin (8 Ben. Mon., 661), the court said: 

We think it entirely clear that so far as residence is to be regarded as a qualifica¬ 
tion for receiving or retaining office, the constitutional provision on the subject 
covers the whole ground, and is a denial of power to the legislature to impose 
greater restrictions. 

In Black v. Trover (79 Ya., 125), also, the court said: 

Now, it is a well-established rule of construction, as laid down by an eminent 
writer, that when the Constitution defines the qualifications for office, the specifica¬ 
tion is an implied prohibition against legislative interference to change or add to 
the qualifications thus defined. 

Mr. Justice Story is conceded to be one of the greatest authorities 
upon the construction of the Constitution, and upon this point he 
states the law as follows: 

It would seem but fair reasoning, upon the plainest principles of interpretation, 
that when the Constitution established certain qualifications as necessary for office, 
it meant to exclude all others as prerequisites. From the very nature of such a 
provision, the affirmation of these qualifications would seem to imply a negative of 
all others. (Story on the Constitution, sec. 625.) 

Cooley certainly stands equal in authority to Story, and he says: 

Another rule of construction is that where the Constitution defines the circum¬ 
stances under which a right may be exercised, or a penalty imposed, the specification 
is an implied prohibition against legislative interference, to add to the condifion, or 
to extend, the penalty to other cases. On this ground it has been held by the supreme 
court of Maryland, that where the Constitution defined the qualifications of an 
officer, it was not in the power of the legislature to change or superadd to them, 
unless the power to do so was expressly, or by necessary implication, conferred by the 
Constitution. (Cooley’s Constitutional Limitations, page 78.) 

Cushing, as against his former statement, says: 

The Constitution of the United States having prescribed the qualifications required 
of Representatives in Congress, the principal of which is inhabitancy within the 
State in which they shall be respectively chosen; leaving it to the States only to 
prescribe the time, place, and manner of holding the election; it is a general princi¬ 
ple that, neither Congress nor the States can impose any additional qualifications. 
It has therefore been held, in the first place, that it is not competent for Congress to 
prescribe any further qualifications, or to pass any law which shall operate as 
such. (Cushing on Law and Practice of Legislative Assemblies, second edition, p. 
27, sec. 65.) 

John Randolph Tucker, one of the latest writers on the Constitution, 
and an able one, is explicit on this point: 

Nor can the Congress nor the House change these qualifications. To the latter no 
such power was delegated, and the assumption of it would be dangerous, as invading 
a right which belonged to the constituent body, and not to the body of which the 
representative of such constituency was a member. (Tucker on the Constitution, 394.) 

The principle that each House has the right to impose a qualification upon its 
membership which is not prescribed in the Constitution, if established, might be of 
great danger to the Republic. It was on this excuse that the French Directory pro¬ 
cured an annulment of elections to the Council of Five Hundred, and thus maintained 
themselves in power against the will of the people, who gladly accepted the despo¬ 
tism of Napoleon as a relief. (Foster on the Constitution, p. 367.) 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 65 

It is a fair presumption that where the Constitution prescribed the qualifications 
it intended to exclude all others. (Paschal’s Annotated Constitution, second edition, 
p. 305, sec. 300.) 

Where the Constitution prescribed the qualifications for an office, the legislature 
can not add others not therein prescribed. (McCrary on Elections, sec. 312.) 

McCrary also takes the ground that statutory and constitutional pro¬ 
visions making ineligible to office any person who has been guilty of 
crime presuppose a conviction before the ineligibility attaches. (Ibid, 
p. 345.) 

Paine, in his work on elections, takes the same view (p. 104-108). 

Certainly the great weight of authority is against the right to add, 
even by law, to the qualifications mentioned in the Constitution. 

SECOND. 

If the right to add a disqualification by law be assumed, the disqual¬ 
ification imposed by the Edmunds Act does not apply to a member of 
Congress, and therefore does not affect Mr. Roberts. The only portion 
of the section that can be said to have any application to a member of 
the House of Representatives is that which declares that no polygamist, 
etc., shall “beentitled to hold any office or place of public trust, honor, 
or emolument, * * # under the United States.” Unless a member 

of the House holds an office “under the United States,” within the 
meaning of the Constitution and the law, there is no disqualification. 

As to the nature of their offices, whether “under the United States” 
or otherwise, members of the House and Senate are evidently the 
same. The words “office” and “offices” occur in the Constitution and 
amendments twenty-three times, and the words “officer” and “ officers” 
fifteen times, and, with the exception of possibly two instances, these 
terms are never used, either directly or indirectly, as relating to or in 
connection with a Representative or Senator. 

One possible exception referred to is found in Article I, section 3, 
and reads: 

Judgment in cases of impeachment, shall not extend further than to removal from 
office, and disqualification to hold and enjoy any office of honor, trust or profit, under 
the United States. 

The term “office” in the first clause, as to “removal from office,” 
clearly does not relate to a member of either House, as it will be seen 
that the f>rovisions as to impeachment do not apply to them. It would 
seem that a civil officer guilty of conduct that would justify impeach¬ 
ment ought not to be eligible to a seat in Congress, though unless the 
clause “office of honor, trust, or profit, under the United States” be 
held to inoiude a member, he could not be disqualified thereby. Still, 
if a member is not the subject of impeachment, there is perhaps as much 
reason in exempting him from the disqualifications of impeachment. 

The other possible exception is in Article I, section 9, paragraph 8: 
“No title of nobility shall be granted by the United States: and no 
person holding any office of profit or trust under them, shall, without 
the consent of Congress, accept of any present, emolument, office, or 
title, of any kind whatever, from any king, prince, or foreign state.” 

Standing alone, we might understand the paragraph as broad enough 
and comprehensive enough to include members of Congress, but, taken 
with the other provisions of the Constitution—and they are numerous— 
wherein the like terms do not embrace or apply to Senators or Repre¬ 
sentatives in Congress, what support can this paragraph possibly afford 
to those who invoke it as authority for adding anything whatever to the 
prescribed qualifications of a Representative? 

H. Rep. 85-5 





CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


66 

The clause in Article I, section 6, provides: )S _ 

And no person holding any office under tlie United States shall he a member of ie 
either House during his continuance in office. 

Here it is very clear that “ any office under the United States ” can . 
not include a member, as otherwise it would be equivalent to a provi¬ 
sion that no member of either House shall be a member of either House 
during his continuance in office—an absurdity. A clause in Article II, 
section 1, provides: 

But no Senator or Representative, or person holding an office of trust or profit 
under the United States, shall be appointed an elector. 

Here “Senator or Bepresentative” and “person holding an office of 
trust or profit under the United States” are used in the alternative, 
or in contradistinction from each other. If they were one and the 
same, their separate enumeration was unnecessary. If identical, there 
would be no occasion to particularize “ Senator or Bepresentative.” 

If identical, the adjective “other” should have been used, so that 
the clause should read, “ or person holding any other office of trust or 
profit under the United States,” etc. 

These observations apply to the following provisions: 

The Senators and Representatives before mentioned, and the members of the 
several State legislatures, and all executive and judicial officers, both of the United 
States and of the several States, shall be bound by oath or affirmation, etc. (Con¬ 
stitution, Art. VI.) 

No person shall be a Senator or Representative in Congress, or elector of President 
and Vice-President, or hold any office, civil or military, under the United States, or 
under any State, who having previously taken an oath, etc. (XIV Amendment, 
sec. 3.) 

Article II, section 4—“The President, Vice-President, and all civil 
officers of the United States shall be removed from office on impeach¬ 
ment for, and conviction of, treason, bribery, or other high crimes and 
misdemeanors”—has been construed by the only tribunal therefor 
known to the Constitution, the Senate sitting as a court of impeach¬ 
ment, which held that a Senator was not a “ civil officer,” and therefore 
was not liable to impeachment. It was the case of William Blount, a 
Senator, who was impeached before the bar of the Senate by the House 
of Kepresentatives. In his plea he claimed that as a member of the 
Senate he was not one of the “civil officers of the United States,”and 
on the 11th of February, 1797, the Senate announced its conclusion as 
follows: 

The court is of the opinion that the matter alleged in the plea of the defendant is 
sufficient in law to show that this court ought not to hold jurisdiction of the said 
impeachment’, and that said impeachment is dismissed. (Annals of ^Congress, vol. 

'8, p. 2319.) 

Story concurs in this view. (Story on the Constitution, sec. 792.) 

Who can be said to hold office “under the United States” was practi¬ 
cally decided in United States v. Germaine (99 U. S., 508-512), where the 
court said: 

The Constitution for purposes of appointment very clearly divides all its officers 
into two classes. The primary class requires a nomination by the President and 
confirmation by the Senate. But foreseeing that when officers become numerous and 
sudden removals necessary, this mode might be inconvenient, it was provided that, 
in regard to officers inferior to those specially mentioned, Congress might by law 
vest their appointment in the President alone, in the courts of law, or in the heads 
of departments. That all persons who can be said to hold an office under the Gov¬ 
ernment about to be established under the Constitution were intended to be included 
within one or the other of these modes of appointment there can be but little doubt. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 67 

In United States v. Mount (124 U. S., 303-308), the Germaine case is 
cited and approved, the court saying: 

In that case, it was distinctly pointed ont that, under the Constitution of the 
United States, all its officers were appointed by the President, by and with the con¬ 
sent of the Senate, or by a court of law, or the head of a department. 

The same principle is affirmed in United States v. Hendee (124 U. S., 
309-315). 

If, then, “ all its officers,” u under the Constitution,” are appointed in 
the manner above indicated, clearly a member of either House does 
not hold an office “ under the United States,” and the Edmunds Act 
can not apply. * 

If the first and second propositions were not conclusive upon the 
question of eligibility, it seems to us very clear that no ineligibility can 
be predicated upon section 8 of the Edmunds Act, upon the facts as 
they must be conceded to exist, A brief statement of the history of 
the legislation involved may be useful. 

The Edmunds Act became a law March 22,1882. Section 1 amended 
section 5352 of the Revised Statutes of the United States, and defined 
and prohibited polygamy. Section 3 defined and prohibited unlawful 
cohabitation, and reads as follows: 

Sec. 3. That if any male person, in a Territory or other place over which the United 
States have exclusive jurisdiction, hereafter cohabits with more than one woman, he 
shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished 
by a fine of not more than three hundred dollars, or by imprisonment for not more 
than six months, or by both said punishments, in the discretion of the court. 

Section 8, relating to eligibility to hold office, has already been quoted. 

The Edmunds-Tucker Act, which became a law March 3, 1887, sup¬ 
plemented the Edmunds law, imposed penalties for various kindred 
offenses, dissolved the corporation known as the Church of Jesus 
Christ of Latter Day Saints, and contained, among other things, various 
provisions as to dower and the law of descent. With reference to 
eligibility to office it contained, among others, this paragraph, in the 
last part of section 24: 

No person who shall have been convicted of any crime under this act, or under 
the act of Congress aforesaid, approved March twenty second, eighteen hundred and 
eighty-two, or who shall be a polygamist, or who shall associate or cohabit polyga- 
mously with persons of the other sex, shall be entitled to vote in any election in 
said Territory, or be capable of jury service, or hold any office or emolument in said 
Territory. 

It will be noticed that this act applied only to “ office or emolument 
in said Territory.” It did not go as far as the similar provision in the 
Edmunds Act and apply to “ any office under the United States.” 

February 4, 1892, Chapter VII of the laws of the Territory of Utah 
was enacted. Section 1 defined and punished polygamy substantially 
as did section 1 of the Edmunds Act. Section 2, relating to cohabita¬ 
tion, in all material parts is an exact transcript of section 3 of the 
Edmunds Act. There is no provision whatever in this act relating to 
ineligibility to office by reason of any of these offenses. (Laws of 
Utah, 1892, p. 5.) 

The enabling act, authorizing the people of Utah to form a constitu¬ 
tion and State government, and to be admitted into the Union, became 
a law July 16, 1894. This act required the convention to provide by 
ordinance irrevocable without the consent of the United States and the 
people of the State— 

First. That perfect toleration of religious sentiment shall be secured, and that no 
inhabitant of said State shall ever be molested in person or property on account of 
his or her mode of religious worship: Provided , That polygamous or plural marriages 
are forever prohibited. 


68 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


The constitution of Utah was adopted by the convention May 8,1895, 
by the people November 5,1895, and the proclamation of the President 
of the United States announcing the result of the election and admit¬ 
ting the State into the Union was issued January 4,1896. Article III, 
ordinance of the constitution, contained the provision as to religious 
liberty and polygamous or plural marriages in the exact language of 
the enabling act. (R. S. Utah, 1898, p. 40.) 

Article XXIY, section 2, of the constitution reads as follows: 

Sec. 2. All laws of the Territory of Utah now in force, not repugnant to this con¬ 
stitution, shall remain in force until they expire by their own limitations or are 
altered or repealed by the legislature. The act of the governor aud the legislative 
assembly of the Territory of Utah entitled an “An act to punish polygamy and other 
kindred offenses,” approved February 4, A. D. 1892, in so far as the same defines and 
imposes penalties for polygamy, is hereby declared to be in force in the State of 
Utah. (R. S. Utah, 1898, p. 67.) 

This did not give the State of Utah any law making persons ineligi¬ 
ble to any office by reason of polygamy or cohabitation, as no such 
provisions existed in the act of 1892, chapter 24, or in any of the “laws 
of the Territory of Utah. 7 ’ 

Sections 4208 to 4216, inclusive, of the Revised Statutes of Utah 
(R. S. Utah, 1898, p. 899) are substantially the act of 1892. Section 2 
of the act of 1892 and section 4209 of the Revised Statutes, relating 
to unlawful cohabitation, are precisely alike. This statute has not 
been changed. 

The laws of the State of Utah, then, do not now impose and never 
have imposed any disqualification for holding office by reason of polyg¬ 
amy or unlawful cohabitation. Mr. Roberts was a resident of the 
Territory of Utah, and since its organization as a State has been a resi¬ 
dent of the State of Utah. Under these circumstances we do not 
think that the disqualifications imposed by the Edmunds Act have 
had any operation as to him since the organization of the State of 
Utah. It is settled by an unbroken line of decisions that all Territorial 
Congressional legislation is superseded by the adoption of a State con¬ 
stitution and the organization of a State. 

In discussing the effect of the adoption of the constitution of Louisi¬ 
ana upon the laws of Congress, the court, in Pcrmoli v. First Munici¬ 
pality (3 How., 610), said: 

So far as they conferred political rights, and secured civil and religious liberties 
(which are political rights), the laws of Congress were all superseded by the State 
constitution; nor is any part of them in force unless they were adopted by the con¬ 
stitution of Louisiana, as the laws of the State. 

The case of Strader et al. v. Graham (10 Howard, 94) determines the 
same question, and says: 

The argument assumes that the six articles which that ordinance declares to be 
perpetual are still in force in the States since formed within the Territory, and 
admitted into the Union. If this proposition could be maintained, it would not alter 
the question. For the regulation of Congress, under the old confederation or the 
present Constitution, for the government of a particular territory, could have no 
force beyond its limits. It certainly could not restrict the power of the States 
within their respective territories; nor in any manner interfere with their laws and 
institutions; nor give this court any control over them. The ordinance in question, 
if still in force, could have no more operation than the laws of Ohio in the State of 
Kentucky, aud could not influence the decision upon the rights of the master or the 
slaves in Jhat State, nor give this court jurisdiction upon the subject. 

But.it lias been settled by judicial decision in this court, that this ordinance is not 
in force. 

The case of Permoli v. The First Municipality, 3 How., 589, depended upon the 
same principles with the case before us. 

The same doctrine is held in Pollard et al. v. Hagan (3 How., 212). 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


69 


It is approved by all of the court, from Chief Justice Taney to Judge 
Curtis, in Dred Scott v. Sandford (19 How., 490). 

It is approved in Woodman v. Kilbourne Manufacturing Company (1 
Abb. U. S., 162), opinion by Justice Miller, of the United States Supreme 
Court. Columbus Insurance Company v. Curtenius (0 McLean, 212). 

This precise question, in the application to the State of Utah of a 
law ot Congress which was not continued in force by any legislation, 
has been determined in Moore v. United States (85 Fed. Rep., 468). 

The court were determining whether a law of Congress against 
unlawful combinations was in force in Utah, and held: 

By its terms, the provision of the statute under which this indictment was found 
applies only to the Territories of the United States, and while it may yet he in 
full force within the Territories, it is clear that no prosecution could he maintained 
under it for entering into a combination or conspiracy in restraint of trade in Utah 
after the date of her admission as a State. * * * When Utah became one of the 

States of the Union, this statute ceased to he in force within its boundaries, unless, by 
appropriate legislation it was continued in force for the purpose of prosecuting vio¬ 
lations thereof committed during the existence of a Territorial form of government. 

" The act of July 2 was not repealed by the enabling act, for it yet applies 

to the Territories of the United States. It ceased to be in force in Utah only because 
it was superseded by the constitution upon the admission of the State. 

We Lave seen that there was no legislation of any kind continuing 
in force section 8 of the Edmunds Act, relating to disqualification. It 
is to be observed that this section does not undertake by its terms to 
operate within the limits of any State. It is expressly confined in its 
operation, by its terms, to “ any Territory or other place over which the 
United States have exclusive jurisdiction.” The meaning of the terms 
“polygamist” or “person cohabitating,” with reference to the restric¬ 
tion as to voting, has been fully settled by. the United States Supreme 
Court in Murphy v. Ramsey. (114 U. S., 39; 29 L. C. P., 47.) 

This was an action for damages sustained by reason of being deprived, 
under this section, of the right to vote in the Territory of Utah; and 
among other things the court held: 

The requirements of the eighth section of the act, in reference to a woman claim¬ 
ing the right to vote, are that she does not, at the time she offers to register, cohabit 
with a polygamist, bigamist, or person cohabiting with more than one woman. 

* * " Upon this construction the statute is not ox>en to the objection that it is an 

ex post facto law. It does not seek in this section and by the penalty of disfran¬ 
chisement to operate as a punishment upon any offense at all. * * * The dis¬ 

franchisement operates upon the existing state and condition of the person, and not 
upon a past offense. It is, therefore, not retrospective. He alone is deprived of his 
vote who, when he offers to register, is then in the state and condition of a biga¬ 
mist or a polygamist, or is then actually cohabiting with more than one woman. 

* * * So that, in respect to those disqualifications of a voter under the act of 

March 22, 1882, the objection is not well taken that represents the inquiry into the 
fact by the officers of registration as an unlawful mode of prosecution for crime. 

In respect to the fact of actual cohabitation with more than one woman, the 
objection is equally groundless, for the inquiry into the fact, so far as the registra¬ 
tion officers are authorized to make it, or the judges of election, on challenge of the 
right of the voter if registered, are required to determine it, is not, in view of its 
character as a crime, nor for the purpose of punishment, but for the sole purpose of 
determining, as in case of eveiw other condition attached to the right of suffrage, 
the qualification of one who alleges his right to vote. It is precisely similar to an 
inquiry into the fact of nativity, of age, or of any other status necessary by law as 
a condition of the elective franchise. 

The principles which apply to eligibility as a voter must apply to 
eligibility to office, as they are in the same section and the same lan¬ 
guage is employed as to each, and in order to be affected by the disqualifi¬ 
cation prescribed by this section, a person must be a polygamist or unlaw¬ 
fully cohabiting within the meaning of the section, u at the time” of 
entering upon the office. It is not enough to show that at some former 


70 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


period Mr. Roberts was a polygamist or unlawfully cohabiting, as the 
disfranchisement does not operate “ upon a past offense.” It would 
have been entirely competent for Roberts to have taken himself from 
under the operation of this section while Utah was still a Territory, 
simply by ceasing to be a polygamist or cohabiting, or by moving into 
a State, as the “ disfranchisement ” operates upon “the existing state 
and condition of the person ” only. In other words, the offense must 
be continuous. The offense and the disqualification are coterminous. 

There is a further legal proposition, too well settled to require the 
citation of authority, and that is, no statute can operate, either directly 
or indirectly, extra-territorially. The statute in question does not 
undertake to. 

The offense of polygamy and unlawfully cohabiting is localized by 
the statute. The provision is not general. No polygamist or person 
thus cohabiting “anywhere, without any restriction as to place,” is not 
the language; on the other hand the prohibition is confined to a speci¬ 
fied locality. No polygamist or any person thus cohabiting; where? 
“In any Territory or other place over which the United States have 
exclusive jurisdiction.” The United States had no power to make the 
prohibition apply to any other place, and did not attempt it. The 
offense and the place defined must coexist. He must be a polygamist 
or person unlawfully cohabiting in “any Territory,” or the statute does 
not apply. The statute applies only to residents of the Territory. 

In the light of these propositions let us analyze the case as it is. 

Mr. Roberts presents himself* as a member-elect of this House. It is 
objected that he is disqualified, under this section, as a polygamist or 
person unlawfully cohabiting. The disqualification must exist at the 
timeof his becoming a member. But since January, 1896,he has resided 
in the State of Utah, and this statute has not since then operated upon 
him, and does not now operate upon him. It can not, therefore, now dis¬ 
qualify him. The conditions of offense and place required by the statute 
to coexist do not coexist in his case, and therefore the statute does not 
apply. In other words, it is said he is ineligible. Why? Because 
there is a statute of the United States which says that no polygamist 
or person unlawfully cohabiting, in “ any Territory ” is eligible, and he 
is a polygamist or person thus cohabiting. It is a complete answer to 
say, “while I am a polygamist I am not such in ‘any Territory.’ ” 

While the penal provisions of the Edmunds Act are in full force in 
“any Territory,” it would not for a moment be contended that Mr. Rob 
erts would be liable to prosecution thereunder since January, 1896. 
Why? Simply because since that time he has committed no crime 
within “any Territory,” as all of his acts have been in the State of 
Utah. A fortiori, the disqualifying provisions do not apply to him, as 
they do not even “operate as a punishment upon any offense at all.”" 
The moment Utah became a State, he, living in Utah, became a resi¬ 
dent of the State, and one of the indispensable elements of the condi¬ 
tion to which the disqualification attaches—residence within “any 
Territory”—ceased to exist, and the disqualification ceased to apply. 
The offense of polygamy or unlawful cohabitation in “any Territory” 
and the disqualification were no longer coterminous. He is now doing 
no act in “any Territory” to which the disqualification applies, and 
therefore, as to him, it does not exist. 

It is true that while Utah was a Territory Roberts was unlawfully 
cohabiting, and the disqualification existed, and his status was then 
that of ineligibility, and therefore, it may be suggested, it continues. 
But this would make the disqualification the result of a past offense, 


CASE OF BRIGHAM H. ROBERTS, OE UTAH. 


71 


and the law says that it “ operates upon the existing state and condition 
ot the person, and not upon a past offense.” It does not “operate as a 
punishment” at all, all of which it clearly would do if the supposition 
were correct. 

If the disqualification attaches to Roberts by reason of acts committed 
in Utah, the State, then the act would be operating extraterritorially, 
outside of “any Territory” to which by its specific terms it is expressly 
confined. The fact that Roberts still resides in the same place where 
he resided in 1895, though Utah is now a State, but then was a Terri¬ 
tory to which the law applied, undoubtedly is the cause of some confu¬ 
sion of thought. It is clear that his legal rights are precisely the same 
as though since 189G he had been residing in Maine, and had been elected 
to Congress from that State. It would not be contended that this act 
could have any application to him in such case to affect his present 
status, as it never operated there. ISTo more has it in Utah since Janu¬ 
ary, 1896. 

It seems to us beyond question that this act does not now apply to 
Mr. Roberts. Then there is no law having any application to this case, 
by which the attempt is made to add anything to the Constitutional 
qualifications. This House, by its independent action, can not make 
law for any purpose. The adding by this House, acting alone, of a 
qualification not established by law would not only be a violation of 
both the Constitution and the law. but it would establish a most dan¬ 
gerous precedent, which could hardly fail to “return to plague the 
inventor.” You might feel that the grave moral and social aspects 
of this case allowed you to— 

Wrest once the law to your authority 

To do a great right, do a little wrong. 

But what warrant have you, when the barriers of the Constitution 
are once broken down, that there may not come after us a House with 
other standards of morality and propriety, which will create other quali¬ 
fications with no rightful foundations, that, in the heat and unreason 
of partisan contest—since there will be no definite standard by which to 
determine the existence of qualifications—will add anything that may 
be necessary to accomplish the desired result? Exigency will deter¬ 
mine the sufficiency. It would no longer be a government of laws, but 
of men. To thus depart from the Constitution, and substitute force for 
law, is to embark upon a trackless sea, without chart or compass, with 
almost a certainty of direful shipwreck. 

It is contended that if all other reasons assigned for exclusion are 
found to be insufficient, as we believe they are, still Mr. Roberts 
should be excluded, upon the alleged ground that, by virtue of the 
enabling act, a compact now exists between the United States and 
Utah which has been violated by the election of Roberts to Congress, 
and that the State can be in this manner punished for such breach of 
the compact. Compact is synonymous with contract. The idea of a 
compact or contract is not predicable upon the relations that exist 
between the State and the General Government. They do not stand in 
the position of contracting parties. The condition upon which Utah 
was to become a State was fully performed when she became a State. 
The enabling act authorized the President to determine when the con¬ 
dition was performed. He discharged that duty, found that the con¬ 
dition was complied with; and that condition no longer exists. 

What did Congress require by the enabling act? Simply that “ said 
convention shall provide by ordinance irrevocable,” etc., and the con- 


72 CASE OF BRIGHAM H. ROBERTS, OF UTAH. 

veution did in terms what it was required to do. It was a condition 
upon the performance of which by the “convention” the admission of 
Utah depended. Its purpose accomplished, its office is gone, and as a 
condition it ceases to exist. No power was reserved in the enabling 
act, nor can any be found in the Constitution of the United States, 
authorizing Congress, not to say the House of Representatives alone, 
to discipline the people or the State of Utah, because the crime of 
polygamy or unlawful cohabitation has not been exterminated in Utah. 
Where is the warrant to be found for the exercise of this disciplinary, 
supervisory power? This theory is apparently evolved for the purposes 
of this case; is entirely without precedent; and has not even the con¬ 
jecture or dream of any writer or commentator on the Constitution to 
stand upon. 

FOURTH. 

If it be thought that the case of Matteson determines that this House 
has no right to expel Mr. Roberts, we can not see how that fact, if it be 
a fact, has any legitimate tendency to establish the existence of a legal 
disqualification. But the Matteson case, in our judgment, does not 
warrant such an inference. Matteson was charged with inciting par¬ 
ties to corrupt the House, and with slandering the House by charging 
that a large number of members had pledged themselves not to vote 
for measures granting money or lands, unless they were paid for it. 
Upon these charges a resolution for his expulsion was pending in the 
Thirty-fourth Congress, and was about to be adopted, when he pre¬ 
vented further action by resigning. Meanwhile, and before the hear¬ 
ing by the committee, he had been elected to the Thirty-fifth Congress. 
In the Thirty-fifth Congress a resolution reciting these facts and declar¬ 
ing Matteson expelled was, after a long debate, referred to a committee, 
of which Mr. Seward, of Georgia, was chairman. 

The debate discloses that the principal ground relied upon in oppo¬ 
sition to the resolution, was that proceedings for expulsion were anala- 
gous to a criminal prosecution at common law, and that Matteson, 
having in effect been once punished by the Thirty-fourth Congress, 
could not property be punished a second time for tire same offense. In 
this respect the facts are not parallel to Mr. Roberts’s case, as it appears 
that the offense with which he is charged is still continuing. The com¬ 
mittee recommended the adoption of a resolution “That it is inex¬ 
pedient to take further action in regard to Orasemus B. Matteson.” 
The whole subject was afterwards laid on the table by a vote of 96 to 69, 
and this ended the action of the House. 

Mr. Seward, in urging the adoption of the recommendation, incor¬ 
rectly stated the action of the Senate in the Smith case in 1808. Smith 
was indicted for treason in Virginia, as an accomplice of Aaron Burr. 
Mr. Seward states: “Mr. Adams made a report to the Senate setting 
forth the crime for which the party was arraigned, and when the vote 
was taken there was not a sufficient number of the members of the 
Senate voted in favor of jurisdiction over the cause, and the Senate 
refused a conviction on the charge. They acted upon the principle that 
the criminal courts had jurisdiction when either the Constitution or 
la ws of the United States were violated, because the facts established 
were clear, and the refusal to convict must turn upon the want of juris¬ 
diction and power.” 

It was claimed in the Smith case that the Senate had no jurisdiction 
until after a conviction upon the indictment. The unanimous report of 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 73 

the committee, made by John Quincy Adams, denied this proposition, 
and as to the power of expulsion stated the law as follows: 

By letter of the Constitution the power of expelling a member is given to each of 
the two Houses of Congress, without any limitation other than that which requires a 
concurrence of two-thirds of the votes to give it effect. 

There was no separate vote as to whether the Senate had jurisdiction. 
The report recommended a resolution exiielling Smith. The vote, on 
its adoption, was 19 to 10, lacking only one of the necessary two thirds. 
When Mr. Seward stated that the “ facts established were clear,” and 
the case must have turned upon “want of jurisdiction and power,” he 
presumed upon the lack of information on the part of the House, or 
himself was lacking in information, as the record discloses that the 
existence of the facts was bitterly contested, and page after page is 
devoted to their discussion; and a majority vote clearly would have 
been sufficient to determine the question of jurisdiction or power. 

The Matteson case was in 1858. With the exception of a suggestion 
that a case had been decided in Massachusetts, the purport of which 
was not stated, no reference was made to a leading Massachusetts case. 
The opinion of the court in that case, an authoritative construction of the 
clause of the constitution under which they were acting, was written 
by Chief Justice Shaw, conceded to be one of the greatest judges that 
ever sat in any court in any land at any time. The report containing 
it was published in 1857. It is the only case which we have been able 
to find where the court has had occasion, with authority, to determine 
this precise question. The constitution of Massachusetts contained 
no provision authorizing the expulsion of a member of the house of 
representatives. Joseph Hiss was expelled by the house upon the 
ground that his conduct on a committee at Lowell “was highly 
improper and disgraceful, both to himself and to this body of which 
he is a member.” This was not disorderly conduct in the house, and 
it is significant that the facts that made it “ improper and disgraceful” 
were not disclosed by the case. 

Hiss, after his expulsion, was arrested at the instance of one of his 
creditors on mesne process and committed to jail. He brought a peti¬ 
tion for habeas corpus on the ground that he was a member of the House 
of Representatives, and as such privileged from arrest. This raised 
the precise question of the legality of his expulsion, and speaking 
through Chief Justice Shaw, the court, among other things, said: 

The question is whether the House of Representatives have the power to expel a 
member. 

After adverting to the fact that the Constitution did not in terms 
authorize expulsion, he says: 

There is nothing to show that the framers of the Constitution intended to with¬ 
hold this power. It may have been given expressly in other States, either ex majori 
cautela, or for the purpose of limiting it, by requiring a vote of more than a majority. 

In the Constitution of the United States, it was given evidently “ for 
the purpose of limiting it,” as a two thirds vote is required. 

Again: 

The power of expulsion is a necessary and incidental power, to enable the house to 
perform its high functions, and is necessary to the safety of the State. It is a power 
of protection. A member may be physically, mentally, or morally, wholly unlit; he 
may be afflicted with a contagious disease, or insane, or noisy, violent and dis¬ 
orderly, or in the habit of using profane, obscene and abusive language. It is nec- 
essarv to put extreme cases, to test a principle. 

If the power exists, the house must necessarily be the sole judge of the exigency 
which may justify and require its exercise. 


74 CASE OF BRIGHAM H. ROBERTS, OF UTAH. 

After having fully examined the law and practice of Parliament, he 
says: 

But there is another consideration, which seems to render it proper to look into 
the law and practice of Parliament, to some extent. I am strongly inclined to 
believe, as above intimated, that the power to commit and to expel its members was 
not given to the house and senate, respectively, because it was regarded as inherent, 
incidental, and necessary, and must exist in every aggregate and deliberative body, in 
order to the exercise of its functions, and because without it such body would be 
powerless to accomplish the purposes of its constitution; and therefore any attempt 
to express or define it would impair rather than strengthen it. This being so, the 
practice and usage of other legislative bodies, exercising the same functions, under 
similar exigencies; and the reason and grounds, existing in the nature of things, upon 
which their rules and practice have been founded; may serve as an example and as 
some guide to the adoption of good rules, when the exigencies arise under our con¬ 
stitution. 

But independently of parliamentary custom and usages, our legislative houses 
have the power to protect themselves, by the punishment and expulsion of a 
member. 

“It is urged that this court will inquire whether the petitioner has been tried. 
But if the House have jurisdiction for any cause to expel, and a court of justice 
finds that they have in fact expelled—” 

He then held that their action was conclusive, and dismissed the 
petition. (Hiss v. Bartlett, 3 Gray, 468.) 

It is instructive on this point to note that this paragraph of the Con-‘ 
stitution, as originally drawn, read: 

Each house may determine the rules of its proceedings; may punish its members 
for disorderly behavior; and may expel a member; 

making three distinct clauses separated by semicolons. 

This extract from the records of the debates in the Federal Conven¬ 
tion shows clearly why the two-thirds provision was inserted in the 
expulsion clause: 

Mr. Madison observed that the right of expulsion (article 6, section 6) was too 
important to be exercised by a bare majority of a quorum; and, in emergencies of 
faction, might be dangerously abused. He moved that “with the concurrence of 
two-thirds,” might be inserted between “may” and “expel.” 

Mr. Randolph and Mr. Mason approved the idea. 

Mr. Gouverneur Morris. This power may be safely trusted to a majority. A few 
men, from factious motives, may keep in a member who ought to be expelled. 

Mr. Carroll thought that the concurrence of two-thirds, at least, ought to be 
required. 

On the question requiring two-thirds, in cases of expelling a member, ten States 
were in the affirmative; Pennsylvania divided. 

Article 6, sec. 6, as thus amended, was then agreed to, nem con. 
(Madison Papers, Yol. V, p. 406.) 

While we think this Hiss case establishes beyond successful contro¬ 
versy the power of expulsion as discretionary and unlimited, it is proper 
to note that no decided case or elementary writer militates against it. 
We give all that we have found on the question. 

In discussing this question, the court, in State v. Jersey City (25 N. 
J. L., 539), said: 

The power vested in the two Houses of Congress by the Constitution, article 1, 
section 5, paragraph 2, is in different phraseology; it is, that “each House may 
determine the rules of its proceedings, punish its members for disorderly behavior, 
and, with the concurrence of two-thirds, expel a member.” Under this power, the 
Senate in 1797 expelled a member of that body for an offense not committed in his 
official character as a member, nor during a session of Congress, nor while the member 
was at the seat of Government. (Blount’s case, Story’s Commentaries on the Con¬ 
stitution, ch. 12, sec. 836.) But it is not clear that the power to expel is limited by 
the Constitution to the cause of disorderly behavior. 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


75 


Evidently without having in mind the accurate use of the term 
“qualification” as used in the Constitution, the court, in State ex rel. 
v. Gilmore (20 Kansas, 554), said: 

The Constitution declares (art. 2, sec. 8) that “Each House shall he judge of the 
elections, returns, and qualifications of its own members.” This is a grant of power, 
and constitutes each House the ultimate tribunal as to the qualifications of its own 
members The two Houses acting conjointly do not decide. Each House acts for 
itself, and by itself; and from its decision there is no appeal, not even to the two 
Houses. And this power is not exhausted when once it has been exercised, and a 
member admitted to his seat. It is a continuous power, and runs through the entire 
term. At any time and at all times during the term of office, each House is empow¬ 
ered to pass upon the present qualifications of its own members. 

Story says: 

And as a member might be so lost to all sense of dignity and duty as to disgrace the 
House by the grossness of his conduct, or interrupt its deliberations by perpetual 
violence or clamor, the power to expel for very aggravated misconduct was also 
indispensable, not as a common, but as an ultimate redress for the grievance. But 
such a power, so summary and at the time so subversive of the rights of the people, 
it was foreseen, might be exerted for mere purposes of faction or party, to remove a 
patriot or to aid a corrupt measure; and it has, therefore, been wisely guarded by 
the restriction that there shall be a concurrence of two-thirds of the members to 
justify an expulsion. * * * 

In July, 1797, William Blount was expelled from the Senate for “a high misde¬ 
meanor, entirely inconsistent with his public trust and duty as a Senator.” The 
offense charged against him was an attempt to seduce an American agent among 
the Indians from his duty, and to alienate the affections and confidence of the 
Indians from the public authorities of the United States, and a negotiation for serv¬ 
ices in behalf of the British Government among the Indians. It was not a statutable 
offense, nor was it committed in his official character; nor was it committed during 
the session of Congress, nor at the seat of government. Yet, by an almost unani¬ 
mous vote he was expelled from that body; and he was afterwards impeached (as 
has been already stated) for this, among other charges. It seems, therefore, to be 
settled by the Senate, upon full deliberation, that expulsion may be for any misde¬ 
meanor which, tlibugli not punishable by any statute, is inconsistent with the trust 
and duty of a Senator. (Story on the Constitution, vol. 1, p. 607.) 

Paschal states: 

It seems to be settled that a member maybe expelled for any misdemeanor which, 
though not punishable by any statute, is inconsistent with the trust and duty of a 
member. (Blount’s Case, 1 Story Const., sec. 838; Smith’s Case, 1 Hall’s L. J., 459; 
Brook’s Case, for assaulting Senator Sumner in the Senate Chamber, for words 
spoken in debate.) It extends to all cases where the offense is such, as in the judg¬ 
ment of the House, unfits him for parliamentary duties. (Paschal’s Annotated Con¬ 
stitution, p. 87, par. 49.) 

It has not yet been precisely settled what must be the disorderly behavior to incur 
punishment, nor what kind of punishment is to be inflicted; but it can not be 
doubted that misbehavior out of the walls of the House or within them, when it 
is not in session, would fall within the meaning of the Constitution. Expulsion 
may, however, be founded on criminal conduct committed in any place, and either 
before or after conviction in a court of law. (Rawle on the Constitution, 2ded., 47.) 

Cooley is specific: 

Each House has also power to punish members for disorderly behavior, and other 
contempts of its authority, as well as to expel a member for any cause which seems 
to the body to render it unfit that he continue to occupy one of its seats. This 
power is generally enumerated in the Constitution among those which the two 
Houses may exercise, but it need not be specified in that instrument, since it would 
exist whether expressly conferred or not. It is a necessary and incidental power 
to enable the House to perform its high functions, and it is necessary to the safety of 
the State. It is a power of protection. A member may be physically, mentally, or 
morally wholly unfit; he may be afflicted with a contagious disease, or insane, or 
noisy, Violent, and disorderly, or in the habit of using profane, obscene, and abusive 
language.” And, “ independently of parliamentary customs and usages, our legis¬ 
lative houses may have the power to protect themselves by the punishment and 
expulsion of a member,” and tbe courts can not inquire into the justice of the deci¬ 
sion, or even so much as examine the proceedings to see whether or not the proper 
opportunity for defense was furnished. (Cooley’s Constitutional Limitations, pp 
159 , 160 .) 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 


hr n 

(6 


Since there has been repeated occasion to take steps against members of each 
House under each of these two clauses, and since the majority has never taken this 
standpoint, it may now be regarded as finally settled that that interpretation is cor¬ 
rect which is the broader, and at the same time, according to ordinary speech, un¬ 
questionably the more natural one. Both Houses of Congress must have been granted 
every power needed to guard themselves and their members against any impropriety 
on the part of a member, and to preserve their dignity and reputation among the 
people. It is wholly for them to say what conduct they are to regard as dishonora¬ 
ble enough to require expulsion. An appeal from their decision lies only to the court 
of public opinion, a court which brings in its verdict at the elections. (Yon Holst’s 
Constitutional Law of the United States, 102.) 

The power of expulsion is unlimited, and the judgment of a two-thirds majority 
is final. (Pomeroy on Constitutional Law, p. 139, 1895.) 

It seems necessary also to remark, that a member may be expelled, or discharged 
from sitting, as such, which is the same thing in milder terms, for many causes, for 
which the election could not be declared void. (Cushing, Law and Practice Legisla¬ 
tive Assemblies, p. 33, sec. 84.) 

The power to expel a member is naturally and even necessarily incidental to all 
aggregate, and especially all legislative bodies; which, without such power, could 
not exist honorably, and fulfill the object of their creation. In England this power 
is sanctioned by continued usage, which, in part, constitutes the law of Parliament. 
(Ibid., p. 251, sec. 625.) 

Blout was expelled from the Senate for an offense inconsistent with public duty, 
but it was not for a statutory offense, nor was it in his official character, nor during 
the session of Congress, nor at the seat of government; the vote of expulsion was 
25 to 1. 

The motion to expel a member may be for disorderly behavior, or disobedience to 
the rules of the House in such aggravated form as to show his unfitness longer to 
remain in the House, and the cases above cited, as well as the reason of the provi¬ 
sion, would justify, the expulsion of a member from the House where his treasonable 
and criminal misconduct would show his unfitness for the public trust and duty of 
a member of either House. But expulsion, which is an extreme punishment, deny¬ 
ing to his constituency the right to be represented by him, can only be indicted by 
the concurrence of two-thirds of the House, and not by a bare majority only. (Cit¬ 
ing Story on the Constitution, sec. 837; Tucker on the Constitution, p. 429.) 

It has since been held by the House of Representatives that a member duly elected 
could not be disqualified for a cause not named in the Constitution, such as immo¬ 
rality, and that the remedy in such a case, if any, was expulsion. The distinction 
between the right to refuse admission and the right of expulsion upon the same 
ground is important, since the former can be done by a majority of a quorum, 
whereas expulsion requires the vote of two-thirds. The question can not be said to 
have been authoritatively decided. (Foster on the Constitution, p. 367.) 

Mr. Foster’s attention does not appear to have been directed to the 
case of Hiss v. Bartlett, as it is in point on his doubt if the doubt 
relates to the power of expulsion; he does not refer to it. 

It is proper to observe that the determinations of the court and 
the opinions of eminent legal authors, unexcelled in reputation and 
learning, are entitled upon these propositions to great weight, as they 
are in every instance the result of careful, dispassionate, and disinter¬ 
ested research and sound reasoning, unaffected by considerations that 
must necessarily have been involved in legislative precedents. The 
two-thirds limitation upon the right to expel not only demonstrates the 
wisdom of the fathers, but illustrates the broad distinction between 
exclusion and expulsion. 

A small partisan majority might render the desire to arbitrarily 
exclude, by a majority vote, in order to more securely intrench itself 
in power, irresistible. Hence its exercise is controlled by legal rules. 
In case of expulsion, when the requisite two-thirds can be had, the 
motive for the exercise of arbitrary power no longer exists, as a two- 
tliirds partisan majority is sufficient for every purpose. Hence expul¬ 
sion has been wisely left in the discretion of the House, and the safety 
of the members does not need the protection of legal rules. 

It seems to us settled, upon reason and authority, that the power of 
the House to expel is unlimited, and that the legal propositions involved 


CASE OF BRIGHAM H. ROBERTS, OF UTAH. 77 

: | 

may be thus fairly summarized.: The power of exclusion is a matter of 
law, to be exercised by a majority vote, in accordance with legal princi¬ 
ples, and exists only where a member-elect lacks some of the qualifica¬ 
tions required by the Constitution. The power of expulsion ns made 
by the Constitution purely a matter of discretion, to be exercised by a 
two thirds vote, fairly, intelligently, conscientiously, with a due regard 
to propriety and the honor and integrity of the House, and the rights 
of the individual member. For the abuse of this discretion we are 
responsible only to our constituents, our consciences, and our God. 

We believe that Mr. Eoberts has the legal, constitutional, right to be 
sworn in as a member, but the tacts are such that we further believe 
the House, in the exercise of its discretion, is not only justified, but 
required by every proper consideration involved, to expel him promptly 
after he becomes a member. 

We recommend the following as a substitute for the resolution pro¬ 
posed by the committee: 

Resolved , That Brigham H. Eoberts, having been duly elected a Eep- 
resentative in the Fifty-sixth Congress from the State of Utah, with 
the qualifications requisite for admission to the House as such, is enti¬ 
tled, as a constitutional right, to take the oath of office prescribed for 
ineinbers-'elect, his status as a polygamist, unlawfully cohabiting with 
plural wives, affording constitutional ground for expulsion, but not for 
exclusion from the House. 

And if the House shall hold with us and swear in Mr. Eoberts as a 
member, we shall, as soon as recognition can be had, offer a resolution 
to expel him as a polygamist, unlawfully cohabiting with plural 
wives. 

C. E. Littlefield. 

David A. De Abmond. 


C 



















































































































































































































































































A 

■; ' 





























































































































































































. 


























































































































































































































































% 















































































































* 















%0 



























* 



























































































« 








